Mc N. & Anor -v- H. S. E., [2009] IEHC 236 (2009)

Docket Number:2009 112 SS
Party Name:Mc N. & Anor, H. S. E.
Judge:Peart J.






THE HIGH COURT Record Number: 2009 No.113 SS




THE HEALTH SERVICE EXECUTIVERESPONDENTJudgment of Mr Justice Michael Peart delivered on the 15th day of May 2009:

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.

Subsequently, and prior to any review of that detention by a Mental Health Tribunal, each Admission Order was revoked, thereby bringing that involuntary detention to an end.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.

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.

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 It is submitted on their behalf that they are in de facto detention even though the Admission Orders have been revoked, and yet they have ceased to enjoy the panoply of rights and safeguards which the Act provides for patients being detained involuntarily.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.

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the relevant medical personnel consider each applicant to be a voluntary patient, now that the Admission Orders have been revoked, there being no other basis under the Act on which the applicants can remain at the hospital.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.

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:

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 18th December 2008 at 12.45pm. A date for a review of that detention by a Mental Health Tribunal was fixed for the 6th January 2009. That Admission Order had been made following a recommendation for voluntary admission signed by the applicant's General Practitioner on the 18th December 2008 at 9.55am. His opinion at that time was that the applicant was suffering from "advanced dementia".

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".

That opinion had been formed having examined the applicant at 2pm on the 17th 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 18th 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.

However on the 6th 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 time-being been discontinued". The Revocation Order was signed by the responsible consultant psychiatrist at 3.30pm on the 5th January 2009, and it appears therefrom that at 3pm on that date the responsible consultant psychiatrist had become of the view, from his examination at that time, that the applicant "is no longer suffering from a mental disorder as defined by the Mental Health Act, 2001". Being of that opinion the responsible consultant psychiatrist must choose which of three boxes to tick thereafter. He could choose to state either that the patient was being discharged pursuant to s. 28 of the Act, or that the patient "has chosen to remain in the approved centre on a voluntary basis" and "is entitled to have his or her detention reviewed by a tribunal in accordance with s. 18 of the Act….". The responsible consultant psychiatrist chose to tick the box only indicating that the applicant "[had] chosen to remain in the approved centre on a voluntary basis".

The letter from the Mental Health Commission which Ms. Boyce had received went on to state in fact that the applicant was entitled to have her detention reviewed by a Tribunal if she so indicates by notice in writing. A letter in similar terms was sent to the applicant at her home address.

Following her appointment as legal representative, Ms. Boyce had met the applicant on the 5th January 2009 and had formed the opinion that the applicant lacked capacity to give her instructions for the purpose of the Tribunal hearing. She met the applicant again on the 8th January 2009 in order to ascertain if the applicant wished to have a review of her detention under s. 28 of the Act as set out in the said letters. At that time the applicant was accompanied at all times by a nurse, and Ms. Boyce was unable to get an answer to any of the basis questions she put to the applicant such as how she was and whether she knew that she was in hospital. She goes on to state that she asked the applicant if her husband had visited her to which she shook her head, and Ms. Boyce states that in fact she (Ms. Boyce) had seen her husband on the Unit that morning when he had come to see her. When Ms. Boyce attempted to explain to the applicant that her status at the hospital had changed "the applicant simply looked perplexed at her nurse". She states that it was clear to her that the applicant did not know who Ms. Boyce was or what her purpose there was and that she did not understand anything which she told her about her change of status. She became of the view that the applicant did not have the capacity to understand what was being said to her and that she was unable to give instructions or make decisions of her own free will and understand the consequences of those decisions, and was unable to get any instructions within the 14 day period from the 5th January 2009 as referred to in s. 28 (5) (b) of the Act.

Ms. Boyce goes on to state that while it appears on the face of the records that the applicant has been released from involuntary detention and is free to leave at any time, the applicant in substance continues to be detained and that the provisions of s. 28 of the Act (power to revoke admission order) and that the applicant lacks the capacity to make a full and informed decision to remain in the care of the respondent on a voluntary basis. It is submitted that in these circumstances the applicant is unlawfully detained on the following bases as stated in her grounding affidavit:

"1. The applicant, incapable of exercising her right to remain voluntarily, is being de facto detained, and yet enjoys none of the rights and safeguards afforded to patients detained under the statutory scheme set out in the Mental Health Act, 2001.

  1. The applicant has been unable due to her continued dementia, to give instructions … to exercise her entitlement to a Tribunal hearing.

  2. In any event, any Tribunal hearing would be limited to the applicant's detention from 18th December 2008 to 5th January 2009 and not into her current status remaining as a voluntary patient on an apparent basis.

  3. There is no scope within the statutory scheme for...

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