Maria (E.T.) v Clinical Director of the Central Mental Hospital & Health Service Executive (HSE)

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 02 November 2010
• Neutral Citation: [2010] IEHC 378
• Court: High Court
• Docket Number: [2010 No.
• Date: 02 November 2010

[2010] IEHC 378

THE HIGH COURT

[No. 589 J.R./2010]

Maria (E.T.) v Clinical Director of the Central Mental Hospital & Health Service Executive (HSE)

JUDICIAL REVIEW

BETWEEN

MARIA (E.T.)

APPLICANT

AND

THE CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL AND THE HEALTH SERVICE EXECUTIVE

RESPONDENTS

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S21

MENTAL HEALTH ACT 2001 S21(2)

CRIMINAL LAW (INSANITY) ACT 2006 S15

H (D) (A MINOR) v IRELAND & ORS UNREP KELLY 23.5.2000 2000/10/3812

R v NORTH WEST LANCASHIRE HEALTH AUTHORITY, EX PARTE A 2000 1 WLR 977 2000 2 FCR 525 53 BMLR 148

IRELAND v UNITED KINGDOM 1979-80 2 EHRR 25

ASHINGDANE v UNITED KINGDOM 1985 7 EHRR 528

HERCZEGFALVY v AUSTRIA 1993 15 EHRR 437

H (J) v RUSSELL (CLINICAL DIRECTOR OF CAVAN GENERAL HOSPITAL) 2007 4 IR 242 2007/27/5562 2007 IEHC 7

ALEKSANYAN v RUSSIA UNREP ECHR 22.12.2008 (APPLICATION NO 46468/06)

UKHAN v UKRAINE UNREP ECHR 18.12.2008 (APPLICATION NO 30628/02)

GRORI v ALBANIA UNREP ECHR 7.7.2009 (APPLICATION NO 25336/04)

CONSTITUTION ART 40

MENTAL HEALTH

Involuntary detention

Lawfulness - Treatment and conditions of detention - Whether inadequate - Transfer to Central Mental Hospital authorised by mental health tribunal - Delay in implementation of transfer - Whether continued detention in approved centre constituted torture, inhuman or degrading treatment - DH (a minor) v Ireland (Unrep, Kelly J, 23/5/2000) and R v North West Lancashire Health Authority Ex p A [2000] 1 WLR 977 followed; Herczegfalvy v Austria (1993) 15 EHRR 437, Ukhan v Ukraine (App. 30628/02) [2008] ECHR 1736 and Grori v. Albania (App. 25336/04) [2009] ECHR 1076 considered - Mental Health Act 2001 (No 25), ss 3 and 21 - Constitution of Ireland 1937, Article 40.3 - European Convention on Human Rights 1950, articles 3 and 8 - Relief refused (2010/589JR - Charleton J - 2/11/2010) [2010] IEHC 378

T(E) (Maria) v Clinical Director Central Mental Hospital

Facts: The applicant, Maria (by designation of the Court) sought a declaratory relief that her detention pursuant to the Mental Health Act 2001 was torture or in breach of Article 3 ECHR. The applicant had required psychiatric services after adolescence and later had suffered a serious attack and required admission for psychiatric care in the wake thereof. The applicant had been authorised to transfer to the Central Mental Hospital from St. Brendan???s Hospital and orders for her involuntary detention had been made. She was placed on a waiting list. It was argued that the better treatment in the Central Mental Hospital coupled with the conditions of confinement she was subjected to in St. Brendan???s Hospital constituted a breach of Article 3 EHCR. The issue arose as to capacity in the medical system, conflicting opinions on treatment and Article 3 ECHR.

Held by Charleton J. that there was no intention by any of the parties to treat Maria in any way incompatible with her dignity under the Constitution and ECHR. A legitimate difference of opinion had risen as to the proper course of her treatment. In the context of her state of health, the conditions of treatment and confinement applied were not unreasonable. The Court could not be expected to order her transfer to the Central Mental Hospital in the context of scarce resources. Her right to privacy had been infringed briefly but was necessary for her proper care and treatment. Her detention was not unlawful and was not in breach of Article 3 ECHR.

Reporter: E.F.

1 1. Maria, the name I will call the applicant, is a patient in St. Brendan's Hospital in Grangegorman. She seeks declaratory relief from the Court that her detention under the provisions of the Mental Health Act 2001 ("the Act of 2001) constitutes torture, or inhuman or degrading treatment pursuant to Article 3 of the European Convention on Human Rights and Fundamental Freedoms 1950. Following on the declaratory relief sought in these proceedings, it is argued on her behalf that appropriate action will be taken by the State to rectify the situation. St. Brendan's Hospital is not a party to these proceedings. In the ordinary course of litigation, this makes it impossible for the Court to make a declaration against them. The reason that the Clinical Director of the Central Mental Hospital in Dundrum is joined instead is that better treatment exists in that institution for Maria than is available in St. Brendan's Hospital. Due to stretched resources, she has now spent eight months waiting for a bed to enable her to go from St. Brendan's Hospital to the Central Mental Hospital. That wait, the availability of better treatment in another place and the circumstances of her current detention make up the elements of the complaint.

Background

2 2. I will be brief in my descriptions of Maria's background. Both her parents suffered from mental illness. She was reared in a kindly fashion by an order of nuns. When she reached adolescence, serious mental problems began to manifest themselves. After a number of episodes of absconding from her residence, she came to the attention of psychiatric services. The situation is not clear as to whether, from that time on, Maria remained in St. Brendan's Hospital in Grangegorman, but it appears probable that she was at some stage living in hostel accommodation in Dublin City. For a short period in 2002, she was admitted to the Central Mental Hospital and what was then a difficult situation in her illness improved somewhat. She then returned to St. Brendan's Hospital which has been her main place of residence since she was nineteen years of age.

3 3. One of the background facts that seem to have most disturbed her condition was an especially vicious rape in 1987. This required a blood transfusion in its aftermath. In consequence of this crime, she has symptoms that are consistent with post traumatic stress disorder. To this serious condition are added paranoid delusions and an underlying serious psychiatric illness. This has resulted in her being unable to trust people, incapable of engaging with psychologists on the team in St. Brendan's, and to her feeling deep rooted insecurity and uncertainty, with low self worth and violent impulses. She has attacked patients on occasion, often looks at nursing staff in an aggressive or vacant manner and has been involved in serious assaults. Up to November 2009, Maria was a voluntary patient in St. Brendan's Hospital. Then a grave incident occurred. She attacked a nurse, grabbing her by the hair and throwing her to the floor, where she kicked her viciously and repeatedly. She was described by the nurses who attended the victim as smiling in the aftermath of the attack. The victim lost a number of teeth and suffered other injuries, including profound shock.

4 4. She was nursed in seclusion following the attack. A security officer had already been engaged by the hospital to shadow her, so as to prevent further damage to the staff. She, however, believes the nursing staff have been rough with her.

5 5. One of her treating psychiatrists, Dr. Maria Theresa Ramanos, on the 7 ^th December, 2009, recommended that she should be considered for admission to the Central Mental Hospital. At that stage Maria had been managed in seclusion for several weeks.

6 6. A Mental Health Tribunal met, as the statutory regime requires, and agreed that the applicant should be transferred from St. Brendan's to the Central Mental Hospital for the purposes of treatment.

The Statutory Power

7 7. It is unnecessary for the purposes of this judgment to detail the statutory powers that have been exercised in detaining Maria. It suffices to say that from a procedural and statutory viewpoint, no difficulty has arisen. Under s. 3 of the Mental Health Act 2001, a person may be detained against their will in a mental hospital, which the Act refers to as an approved centre, where they have a mental disorder, which means a mental illness or severe dementia, or significant intellectual disability and where (i) because of the condition there is a serious likelihood of the person causing harm to themselves or others, or (ii) because of the severity of the condition, a failure to hospitalise would be likely to lead to a deterioration or would prevent the administration of appropriate treatment, and the reception and treatment of the person in a hospital would be likely to benefit or alleviate the condition to a material extent. It is clear, on the basis of the papers, that from the first involuntary admission that both a serious likelihood of harm by Maria to herself, or to other people, and a necessity for hospitalisation in order to alleviate her condition, were present.

8 8. Under s. 21 of the Mental Health Act 2001, where the Clinical Director of a hospital where a mental patient is detained is of the view that for the purpose of obtaining special treatment, the patient should be transferred somewhere else, that transfer may be arranged with the consent of the receiving hospital. That is the ordinary situation as between two hospitals that may treat people who have a mental illness. In the case of the Central Mental Hospital, however, s. 21(2) provides that if the transfer is to be to the Central Mental Hospital, then the Mental Health Commission must be notified who must refer a proposal to a Mental Health Tribunal, which Tribunal must decide to either refuse to authorise the transfer or to certify that it is in the best interests of the health of the patient. The transfer was authorised, in that regard, as the statutory scheme demands, in respect of Maria. Having been detained in St. Brendan's Hospital by virtue of an order affirmed by a Mental Health Tribunal on the 22 ^nd December, 2009, a proposal was made on the 14 ^th January, 2010, to...