M.Z. v Abid Saeed Khattak and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Michael Peart
• Judgment Date: 28 July 2008
• Neutral Citation: [2008] IEHC 262
• Date: 28 July 2008
• Docket Number: [2008 No. 1038

[2008] IEHC 262

THE HIGH COURT

Record Number; No. 1058 SS/2008

Z (M) v Khattak & Tallaght Hospital Board

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF BUNREACHT NA H-EIREANN

Between;

MZ

Applicant

And

DR. ABID SAEED KHATTAK

And

TALLAGHT HOSPITAL BOARD

Respondents

CONSTITUTION ART 40.4.2

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S11

MENTAL HEALTH ACT 2001 S12(3)

MENTAL HEALTH ACT 2001 S12(2)

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH ACT 2001 S16(1)(a)

MENTAL HEALTH ACT 2001 S13(1)

MENTAL HEALTH ACT 2001 S13(2)

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S24

MENTAL HEALTH ACT 2001 S12(1)

MENTAL HEALTH ACT 2001 S12(5)

MENTAL HEALTH ACT 2001 S9(1)(a)

MENTAL HEALTH ACT 2001 S9(3)

MENTAL HEALTH ACT 2001 S9(4)

MENTAL HEALTH ACT 2001 S10(1)

MENTAL HEALTH ACT 2001 S18

MENTAL TREATMENT ACT 1945 S184

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S14(1)

MENTAL HEALTH ACT 2001 S16(1)

MENTAL HEALTH

Detention

Involuntary patient - Procedure - Legality of detention - Standard of examination by medical practitioner - "As soon as may be" - Breach of technical requirements - Whether detention legal - Whether process must continue under section under which it was initiated - Whether breach of technical requirement amounted to breach of individual's constitutional rights - Whether examination by medical practitioner adequate - Mental Treatment Act 1945 (No 19), s 184 - Mental Health Act 2001 (No 25), ss 9,10, 12, 13 and 14 - Detention found to be lawful (2008/1038SS - Peart J - 29/7/2008) [2008] IEHC 262

Z(M) v Khattak

WORDS AND PHRASES

"As soon as may be" - McCarthy v An Garda Siochána Complaints Tribunal [2002] 2 ILRM 341 followed - Mental Health Act 2001(No 25), s 14 - Detention found to be lawful (2008/1038SS - Peart J - 29/7/2008) [2008] IEHC 262

Z(M) v Khattak

1 Mr Justice Michael Peart delivered on the 28th day of July 2008:

2 The applicant is currently detained as an involuntary patient at a psychiatric unit within what I shall refer to simply as Tallaght Hospital, pursuant to an Admission Order signed on the 5 ^th day of July 2008. It is not disputed by him that he suffers from a mental illness, but he denies that he has a mental disorder.

3 The applicant has sought an inquiry into the lawfulness of that detention and, if necessary an order for his release under Article 40.4.2 of Bunreacht na h-Eireann.

4 A number of grounds are put forward on his behalf as being sufficient to require his release, and I will come to those in due course. I will, however, set out first of all the relevant facts and chronology of events which have led to the making of the Admission Order and, consequently, his present detention.

5 The affidavit grounding this application has been sworn by the applicant's solicitor who was appointed by the Mental Health Commission to represent the applicant's interests, and in it he states that the applicant has a history of bipolar affective disorder, and on the 2 ^nd July 2008 and again on the 4 ^th July 2008 he sought to be admitted for treatment to St. Vincent's Hospital, Fairview as a voluntary patient but was refused admission on the basis that he was not living within the catchment area of that hospital. It would however appear that staff at that hospital made contact with Tallaght Hospital and spoke to a consultant psychiatrist there, namely Dr Yolande Ferguson at about 11.45am on the 4 ^th July 2008. Dr Ferguson as a result of what she was told faxed a letter to Mountjoy Garda Station, being the station with responsibility for the area in which the applicant was then residing, to inform them that the applicant was a patient at Tallaght Hospital, and requested that if the applicant came to their attention, they should arrange for him to be assessed and transferred to Tallaght Hospital.

6 At around the same time, the applicant's brother, EZ also spoke to Dr Ferguson and informed her that the applicant was not taking his medication and was in possession of a Samurai sword, and he had fears for his safety and the safety of others.

7 EZ later attended at Mountjoy Garda Station and discussed these concerns with members of the Gardai on duty, and informed them that the landlord of the premises in which the applicant was residing was not happy to have him there as a tenant. EZ has last seen his brother at about 2pm on the 4 ^th July 2008. Further information was obtained that the applicant was in fact at that time residing with a friend within the same area, and EZ appears to have indicated to the Gardai that he was content that nothing should be done by the Gardai until the following morning, the 5 ^th July 2008.

8 At about 7.20am on the 5 ^th July 2008, EZ again called to Mountjoy Garda Station and spoke to Sgt. Reynolds who was by then on duty at the station, and who had by then seen the faxed letter from Dr Ferguson. EZ has ascertained that the applicant was by then back in his own flat in Leo Street, Dublin 7 and could be located there of the Gardai called. He knew also that access to the premises would be facilitated by another tenant in the premises. In these circumstances, Sgt. Reynolds dispatched Garda Ryan and Garda Barker to the premises to take the applicant into custody under powers contained in s. 12 of the Mental Health Act, 2001 ("the Act"), and EZ followed independently.

9 Garda Ryan gave evidence before me, and has stated that he and his colleague went to the house in question, arriving at about 8.15am, and were let into the house. They made their way up to the applicant's flat and were admitted by him without any difficulty. They explained that they were concerned for his safety and welfare and that he was not taking his medication. Apparently the applicant stated that he was in fact taking his medication, but nonetheless he was asked to accompany the Gardai back to Mountjoy Garda Station. He co-operated fully, and was not placed in hand-cuffs, and accompanied them to the Garda Station without incident. On arrival, Sgt Reynolds spoke to him and it was agreed that he would not be placed in a cell and was allowed to remain seated in a lobby area at the station while Sgt Reynolds telephoned a registered medical practitioner so that the latter could call to the station for the purpose of carrying out the examination of the applicant required by that section, that examination being a necessary pre-requisite for the making of a recommendation for the involuntary admission of the applicant to an approved centre.

10 I will come to the detail of that examination in due course, but should first of all, for convenience, set out the provisions of s. 12 of the Act, and certain provisions of sections 10 and 11 thereof since they are relevant in view of the reference to them in s. 12 (3) of the Act.

11 Section 12 provides as relevant:

12 2 "12.-(1) Where a member of the Garda Siochána has reasonable grounds for believing that a person is suffering from a mental disorder, and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons, the member may either alone or with any other members of the Garda Siochána -

13 (a) take the person into custody, and

14 (b) enter if need be by force any dwelling or other premises or any place if he or she has reasonable grounds for believing that the person is to be found there.

15 (2) Where a member of the Garda Siochána takes a person into custody under subsection (1), he or she or any other member of the Garda Siochána shall make an application forthwith in a form specified by the Commission to a registered medical practitioner for a recommendation.

16 (3) The provisions of sections 10 and 11 shall apply to an application under this section as they apply to an application under section 9 with any modifications.

17 (4) ...

18 (5) Where, following an application under this section, a recommendation is made in relation to a person, a member of the Garda Siochána shall remove the person to the approved centre specified in the recommendation."

19 Sections 10 (referred to in sub-section (3) above), provides as relevant:

20 2 "10.-(1) Where a registered medical practitioner is satisfied following an examination of the person the subject of the application that the person is suffering from a mental disorder, he or she shall make a recommendation 9in this Act referred to as "a recommendation") in a form specified by the Commission that the person be involuntarily admitted to an approved centre (other than the Central Mental Hospital) specified by him or her in the recommendation.

21 (2) An examination of the person the subject of an application shall be carried out within 24 hours of the receipt of the application and the registered medical practitioner concerned shall inform the purpose of the examination unless in his or her view the provision of such information might be prejudicial to the person's mental health, well-being or emotional condition.

22 3 (3)...[provision as to disqualification]

23 (4) A recommendation under subsection (1) shall be sent by the registered medical practitioner concerned to the clinical director of the approved centre concerned and a copy of the recommendation shall be given to the applicant concerned.

24 (5) A recommendation under this section shall remain in force for a period of 7 days from the date of its making and shall then expire.

25 Section 11 has no relevance to the present application.

26 What occurred in relation to the applicant once the registered medical practitioner arrived at the Garda station and was introduced to the applicant is of relevance to the grounds put forward by the applicant for his release, given these...