Ms. K v Clinical Director of Drogheda Department of Psychiatry
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 12 April 2022 |
| Neutral Citation | [2022] IEHC 248 |
| Court | High Court |
| Docket Number | RECORD NO. 2022/493/SS |
[2022] IEHC 248
RECORD NO. 2022/493/SS
THE HIGH COURT
Unlawful detention – Release – Voluntary patient – Applicant seeking release from detention – Whether the applicant’s detention was unlawful
Facts: The applicant was detained in the Department of Psychiatry in Drogheda, County Louth (the approved centre), pursuant to s. 24 of the Mental Health Act 2001. The applicant applied to the High Court under Article 40.4. She asked that Hyland J declare her detention unlawful and that she be released on the basis that she was not a voluntary patient. The alternative basis identified by the applicant as a basis for her release was that Form 13, as produced in the certification to the High Court of her detention, could not be relied upon given its amendment, and that the detention was unlawful as there is no provision for amendments of such forms.
Held by Hyland J that the approved centre was not entitled to detain her since she did not meet the requirement for the application of ss. 23 and 24, i.e. that the person is a voluntary patient. Hyland J held that this meant that her detention was unlawful and that she must be released.
Hyland J held that there is a statutory requirement that the responsible consultant psychiatrist shall make an admission order in the form specified by the Mental Health Commission for the reception, detention and treatment of the person in the approved centre. Hyland J held that no such Form that accurately reflected what took place was before the Court. Hyland J held that an affidavit could not compensate for that. In those circumstances, Hyland J was of the opinion that the detention must also be rendered invalid by the position in relation to Form 13 as there was no valid admission order before her, and on that basis also she directed the release of the applicant.
Application granted.
EX TEMPORE JUDGMENT of Ms. Justice Niamh Hyland delivered on 12 April 2022
This is my decision on the application under Article 40.4 brought by the applicant who is currently detained in the Department of Psychiatry in Drogheda, County Louth (“DDOP”, also referred to as the “approved centre”), pursuant to s.24 of the Mental Health Act 2001. She asks that I declare her detention unlawful and that she be released.
An inquiry was directed by Meenan J. on 4 April 2022 and the respondent was ordered to certify in writing the grounds of the applicant's detention. I heard the matter on 8 April 2022. The respondent produced a certificate certifying that the applicant was detained on foot of an Admission Order made on 2 April 2022, a copy of which was attached thereto. The Order was contained in what is known as a Form 13, as issued by the Mental Health Commission, and is entitled “ Certificate and Admission Order to Detain a Voluntary Patient”.
The Form identified that the professional who detained the applicant pursuant to s.23(1) on 1 April 2022 was a registered nurse. The Admission Order was signed by Dr. Ukobo on 2 April 2022. The Form requires to be signed by the consultant psychiatrist responsible for the care of the applicant or a person deputised by them. This is provided for under s.24(6) of the Act.
Following the making of the Order on 2 April, the applicant's solicitor, Ms. Cogan, was appointed by the Mental Health Commission as a legal representative for the applicant by reference to s.17 of the 2001 Act. This provides that following the receipt by the Mental Health Commission of an Admission Order, the Commission shall as soon as possible, inter alia, assign a legal representative to represent the patient at the Tribunal that will review the detention. In that context, Ms. Cogan had been permitted to download the Order detaining the applicant from the Mental Health Commission Central Information System. Surprisingly, although she had been requesting it since 2 April, no copy had been furnished to her by the DDOP. The version of Form 13 downloaded by her identified that the professional who detained the person pursuant to s.23(1) was a consultant psychiatrist. This is obviously different to the version of the Form 13 certifying the detention that had been provided to the High Court which, as I have said, identified the relevant person as a registered nurse. In both versions of the Form, the reasons were as follows: “ Ongoing delusions, wishes to leave hospital, limited insights, risk of misadventure.”
Given the discrepancy in the Forms, I directed at the end of the hearing that the respondent file an affidavit explaining why this was so. I received an affidavit of Valerie McQuaid, sworn 8 April 2022, on 11 April 2022. I deal with the contents of same below. However, I should say that I have also this morning received two additional affidavits: an affidavit of Valerie McQuaid sworn 12 April 2022 and an affidavit of Dr. Ukobo sworn 12 April 2022. Those affidavits introduce new facts. Ms. McQuaid in her affidavit says that she noted two errors. First, that the incorrect box was ticked in relation to section.1 of Part 1 in respect of the person who had detained the applicant under s.23, that the box marked “ consultant psychiatrist” was ticked when it should have been the box marked “ registered nurse”. She does not identify the means by which she knew this was a mistake. She also identifies that a signature required at section 9 of the Form was not included and the signature that should have been included was a signature of Dr. Thekiso.
She says that Dr. Ukobo was the inpatient consultant psychiatrist and that he uploaded the Form, and she says that she brought the error she had noted to the immediate attention of Dr. Thekiso and on Monday morning he correctly completed statutory Form 13. She says that she then uploaded it. It is not completely clear to me who amended the entry as to whether it was the psychiatrist or the nurse who had carried out the s.23 hold.
Then there was another affidavit from Dr. Ukobo who says he was the consultant psychiatrist on call on 2 April 2022, and that he uploaded the documentation by using the account of Ms. McQuaid, and he did so at 14:16.
That is the additional material that has just been provided to me this morning, and I have been able to consider it and incorporate it into my judgment. I have also heard submissions on same from counsel for the applicant in circumstances where the applicant did not have an opportunity to reply to those affidavits, but she was happy to proceed on the basis that she made submissions and those submissions were replied to by counsel for the DDOP. Before considering in more detail these affidavits I am going to set out the relevant facts.
The applicant was born on 29 May 1962 and lives in Navan. She suffers from lupus and has no history or prior engagement with mental health services. An application for her involuntary detention in an approved centre was made by Mr. Alvarez under s.9 of the 2001 Act on 14 March 2022. A recommendation for her involuntary detention in the approved centre was made by Dr. Lee by reference to s.10 of the Act a few hours later. An Admission Order detaining her for a period of up to 21 days was made by Dr. Thekiso, the responsible consultant psychiatrist, by reference to s.14 of the Act on 15 March 2022.
A mandatory statutory review of the Admission Order was scheduled for 1 April 2022 and Ms. Cogan, solicitor, was appointed by the Mental Health Commission as the applicant's legal representative. The applicant was reviewed by an independent consultant psychiatrist (“ICP”) appointed by the Commission under s.17 of the Act. In her report, the ICP concluded that the applicant was suffering from a mental disorder under s.3(b)(1) and (2) of the Act (i.e. failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition and detention in an approved centre would be likely to benefit that person). She diagnosed the applicant as suffering from an acute psychotic episode and delusional beliefs. She notes that the applicant's doctor is of the opinion that a physical cause requires to be considered, given that she suffers from lupus but the patient continues to refuse those investigations.
On 1 April 2022, the Tribunal reviewed the Admission Order by way of video conference hearing and decided to revoke the Admission Order by reason of non-compliance with the provisions of s.9 of the Act. The Tribunal concluded that the patient was presently suffering from a mental disorder within the meaning of the terms set out at s.3(1)(b) of the 2001 Act. This was based on the evidence of Dr. Thekiso. The Tribunal considered that the risks did not reach the immediate level required by s.3(1)(a) of the Act but the evidence suggested the presence of a real basis for concern.
As regards procedural compliance, the Tribunal decided that there had been a failure to comply with s.9 and 14 of the Act, in that, in relation to the Admission Order, the age box was blank and the gender box was blank but nonetheless the Form was filled in and initialised. The Tribunal decided those defects did not affect the substance of the Order and so did not cause an injustice. However, in relation to the application form, it was found there was a serious defect in that the box at paragraph 12 was blank. They held this was a fundamental matter as it related to the question as to whether there was a previous refusal of an application. A defect of this nature was held to be significant and serious on the face of the form and affecting the substance of the Order and as such it could not be inferred that no injustice had been caused. The Tribunal, therefore, revoked the Admission Order on the basis that the defect was a defect on the face of the form itself.
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