McN (M) & C (L) v Health Service Executive (HSE)

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 15 May 2009
• Neutral Citation: [2009] IEHC 236
• Court: High Court
• Date: 15 May 2009

[2009] IEHC 236

THE HIGH COURT

Record Number: No. 112 SS/2009

Record Number: No. 113 SS/2009

McN (M) & C (L) v Health Service Executive (HSE)

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND AND IN THE MATTER OF THE MENTAL HEALTH ACT, 2001

BETWEEN:

M.MCN

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND AND IN THE MATTER OF THE MENTAL HEALTH ACT, 2001

BETWEEN:

L.C.

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S18(1)(a)(ii)

MENTAL HEALTH ACT 2001 S28

MENTAL HEALTH ACT 2001 S28(5)(b)

MENTAL HEALTH ACT 2001 S24

MENTAL HEALTH ACT 2001 S29

MENTAL HEALTH ACT 2001 S3(A)

MENTAL HEALTH ACT 2001 S3(B)

CONSTITUTION ART 40.4

MENTAL HEALTH ACT 2001 S28(5)

MENTAL HEALTH ACT 2001 S28(3)

MENTAL HEALTH ACT 2001 S28(1)

R v BOURNEWOOD COMMUNITY & MENTAL HEALTH NHS TRUST 1998 3 AER 289

MENTAL HEALTH ACT 1983 S131 (UK)

L (H) v UK 2004 ECHR APPLICATION NO 45508/99

MENTAL HEALTH ACT 1983 S131(1) (UK)

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

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(4)

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH ACT 2001 S16(2)(g)

MENTAL HEALTH ACT 2001 S16(1)

MENTAL HEALTH ACT 2001 S16(1)(b)

MENTAL HEALTH ACT 2001 S56(1)

MENTAL HEALTH ACT 2001 S57(1)

A WARD OF COURT, IN RE (NO. 2) 1996 2 IR 79

FITZPATRICK & ANOR v K (F) & ANOR UNREP LAFFOY 25.4.2008 2008 IEHC 104

H (J) v RUSSELL 2007 4 IR 242

R (M) v BYRNE 2007 3 IR 211

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 46.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS S2

H (E) v CLINICAL DIRECTOR OF ST VINCENTS HOSPITAL & ORS UNREP O'NEILL 6.2.2009 2009 IEHC 69

MENTAL HEALTH ACT 2001 S16(2)

MENTAL HEALTH ACT 2001 S3(1)(a)

MENTAL HEALTH

Detention

Mental disorder - Involuntary admission - Improvement of condition of patient - Subsequent revocation of admission order - Status of patient following revocation of order - Capacity to make full and informed decision - Patient incapable of consenting to detention - Patient not permitted to leave secure unit unaccompanied - De facto detention - Best interests of patient - Whether patient detained voluntarily - Whether detention unlawful - Whether patient capable of consenting to detention - Whether patient capable of making decision to remain voluntarily - R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 3 All ER 289 and L v United Kingdom [2004] ECHR 45508/99 considered and distinguished; In Re A Ward of Court (No 2) [1996] 2 IR 79, Fitzpatrick v. K(F) [2008] IEHC 104 [2009] 2 IR 7, JH v Russell [2007] IEHC 7 [2007] 4 IR 242, MR v Byrne [2007] IEHC 73 [2007] 3 IR 211 and EH v Clinical Director of St. Vincent's Hospital [2009] IEHC 69 (Unrep, O'Neill J, 6/2/2009) considered- Mental Health Act 2001 (No 25) ss 3, 10, 16, 18, 23, 24, 28, 29, 56 & 57 - European Convention on Human Rights Act 2003 (No 20) s2 - Application refused (2009/112SS - Peart J - 15/5/2009) [2009] IEHC 236

McN (M) v Health Service Executive

Facts: The applicants were originally detained as involuntary patients on foot of an admission order which was then revoked. The issue arose as to the lawfulness of keeping the patients in a locked unit and under the same conditions as during their detention on foot of an admission order and whether this detention was lawful or whether they were entitled to be released.

Held by Peart J. that the applicants were voluntary patients as defined in the Act despite the fact that neither could give their consent to that status and that their continuing presence at the hospital was consistent with and permitted by the provisions of the Act. They were not unlawfully detained. The appropriateness of a discharge was not a condition precedent to the revocation of the order. The consultant psychiatrist had to retain the capacity to ensure that the patient was not discharged from the hospital into a situation of danger. The provisions of the Act supported the view that the individual could remain at the approved centre until after they had ceased to be subject to an involuntary detention order.

Reporter: E.F.

1 Mr Justice Michael Peart delivered on the 15th day of May 2009:

2 Each of the above applicants was as of the date of hearing before me in an acute psychiatric unit at the Western Regional Hospital, Dooradoyle, Limerick. Each was originally detained as an involuntary patient on foot of an Admission Order since it was considered by a consultant psychiatrist there that each was suffering from a mental disorder within the meaning of section 3 of the Mental Health Act, 2001 ("the Act"), namely severe dementia.

3 Subsequently, and prior to any review of that detention by a Mental Health Tribunal, each Admission Order was revoked, thereby bringing that involuntary detention to an end. This was on the basis that each was no longer suffering from a mental disorder as so defined. Thereafter, however, each applicant has remained in the said unit as voluntary patient.

4 The issue which arises in respect of each applicant results from the undisputed fact that neither applicant has the mental capacity to make a full and informed decision to remain in the unit on a voluntary basis. Essentially it is the consultant psychiatrist who has categorised each now as a voluntary patient when completing the Revocation Orders, there being no other basis for their remaining in the hospital once neither is considered to be suffering from a mental disorder as defined by s. 3 of the Act. and the orders are revoked.

5 The fact is that each applicant remains in the same locked unit and in the same conditions as they were when being detained on foot of the Admission Order. It is submitted on their behalf that they are in de facto detention even though the Admission Orders have been revoked, and yet they have ceased to enjoy the panoply of rights and safeguards which the Act provides for patients being detained involuntarily. That de facto detention is submitted to be not in accordance with law.

6 It is clear that the relevant medical personnel consider each applicant to be a voluntary patient, now that the Admission Orders have been revoked, there being no other basis under the Act on which the applicants can remain at the hospital. However, neither is free to leave the hospital unless they do so in the company of a family member. The hospital personnel consider however that they are free to go and are not being involuntarily detained. But there is evidence to the effect that if either applicant was to attempt to leave the hospital unaccompanied, the provisions of s. 23 of the Act would be invoked, which provides that where a person, who is in the hospital as a voluntary patient, indicates at any time that he or she wishes to leave, then, if, inter alios, a consultant psychiatrist is of the opinion that the person is suffering from a mental disorder, he/she may detain the person for a period not exceeding 24 hours.

7 It is submitted on behalf of the applicants that in the prevailing circumstances the de facto detention of each applicant is unlawful and that the Court should order that each be released.

Background facts - M.McM:

8 Ms. Etain Boyce, solicitor was appointed by the Mental Health Commission to represents the interests of this applicant after she had been involuntarily admitted to the respondent hospital on the 18 ^th December 2008 at 12.45pm. A date for a review of that detention by a Mental Health Tribunal was fixed for the 6 ^th January 2009. That Admission Order had been made following a recommendation for voluntary admission signed by the applicant's General Practitioner on the 18 ^th December 2008 at 9.55am. His opinion at that time was that the applicant was suffering from "advanced dementia".

9 The Admission Order signed at 12.45pm stated the consultant psychiatrist's opinion as follows:

"Has a diagnosis of dementia for several years. Over past weeks has become dangerously physically aggressive especially to husband with whom she lives".

10 That opinion had been formed having examined the applicant at 2pm on the 17 ^th December 2008, which pre-dated the application by the applicant's husband for a recommendation which had not been completed until 9.45am on the 18 ^th December 2008, and Ms. Boyce had intended bringing this matter to the attention of the Tribunal at the review hearing, since s. 10 of the Act requires that the examination take place within 24 hours after the receipt of that application. Section 10 of the Act provides that such examination "shall be carried out within 24 hours of the receipt of the application". I do not have to decide whether in fact that means that the examination must take place within 24 hours following that receipt or within the previous 24 hours. Even if the provision is to be construed as meaning the former, that failure to comply with the provision in s. 10 is in any event a matter which the Tribunal would have had power to consider overlooking on the review in accordance with the provisions of s. 18 (1) (a) (ii) of the Act if it was satisfied that the failure did not affect the substance of the order and did not cause an injustice. However I express no view on the matter.

11 However on the 6 ^th January 2009, but before the review hearing, Ms. Boyce received a letter from the Mental Health Commission stating that the involuntary admission and treatment of the applicant had ended and that the arrangements for the review hearing had "for the...