P.D v Clinical Director Department of Psychiatry Connolly Hospital

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date10 February 2014
Neutral Citation[2014] IEHC 58
CourtHigh Court
Docket Number[2014 No. 192 SS]
Date10 February 2014

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/
P.D.
APPLICANT
AND
CLINICAL DIRECTOR, DEPARTMENT OF PSYCHIATRY, CONNOLLY HOSPITAL
RESPONDENTS

[2014] IEHC 58

[2014 No. 192 SS]

THE HIGH COURT

Mental health – Involuntary patient - Medical treatment - Detention - Renewal order - Mental Health Tribunal - Procedural non-compliance - Legal basis of detention - Constitution of Ireland - Mental Health Act 2001

Facts: These proceedings concerned an application for an inquiry into the detention of the applicant, pursuant to Article 40.4.2 of the Constitution of Ireland. On the 26 th October 2013, the applicant was admitted as an involuntary patient to the Department of Psychiatry, Connolly Hospital. A renewal order was made on the 13th November 2013, and a Mental Health Tribunal then affirmed the admission order and the renewal order on the 27th November 2013. On the 13th January 2014, a further renewal order was made by a consultant psychiatrist, which a Mental Health Tribunal then affirmed pursuant to s. 18(1) of the Mental Health Act 2001 (‘the 2001 Act’), despite the fact it was clear that two errors were made in the completion of the renewal form; namely, the completion of the form in reference to s. 15(2) of the 2001 Act rather than to s. 15(3), and the notation of the date that the order was to stay enforce until being fixed as the 13th April 2013 instead of the 13th April 2014. The Mental Health Tribunal determined that these two errors were technical errors, which did not affect the substance of the order or cause an injustice, and could be overlooked pursuant to s. 18(1)(a)(ii) of the 2001 Act.

The applicant brought proceedings challenging her detention on the basis that, given the errors in the renewal form, her detention was unlawful pursuant to Article 40.4.2 of the Constitution of Ireland.

Held by Hogan J. that the applicant”s detention was based on the renewal order of the 13th January 2014 alone. It was also said that although, under certain circumstances, s. 18(1)(a)(ii) of the 2001 Act enables a Mental Health Tribunal to disregard a defect in the renewal order that have resulted from earlier non-compliance with certain key procedural requirements, use of this section had not been available to the Mental Health Tribunal in this case. It was explained that when it was clear that there had been non-compliance of this kind, s. 18(1)(a)(ii) could only be invoked when the renewal order was otherwise “good on its face”; however, the renewal order of the 13 th January 2014 could not be described as such because it did not recite an appropriate legal basis for detention.

It was held that the failure in completing the applicant”s renewal form in reference to the correct section of the 2001 Act was significant because of the different effects of s. 15(2) and s. 15(3) of the 2001 Act. Relying on the case of GE v. Governor of Cloverhill Prison [2011] IESC 41, it was said that it was vitally important that any order that provides the legal basis for any form of custody or detention should clearly recite the basis for this on its face. As a result, it was determined that this error could not be remedied by s. 18(1)(a)(ii) of the 2001 Act and that the applicant”s detention was unlawful pursuant to Article 40.4.2 of the Constitution of Ireland.

Order for the immediate release of the applicant made pursuant to Article 40.4.2 of the Constitution of Ireland.

Mr. Justice Hogan
JUDGMENT of Mr. Justice Hogan delivered on the 10th day of February, 2014
1

The applicant in these Article 40 proceedings, Ms. D., is a 27 year old with a long history of mental illness who is currently detained by the respondent by virtue of a renewal order made on 13th January 2014. Although outwardly the applicant often presents as pleasant and cheerful, she has been presently diagnosed with schizoaffective disorder. She is a vulnerable person who has no real insight into the nature of her condition. Having regard to the circumstances of her medical condition I accordingly made an order pursuant to s. 27(1) of the Civil Law (Miscellaneous Provisions) Act 2008 which prohibited the publication of any details which might identify her.

2

Ms. D. was admitted as an involuntary patient to the Department of Psychiatry, Connolly Hospital on 26th October 2013. A renewal order was made on 13th November 2013. A Mental Health Tribunal then affirmed the admission order and the renewal order on 27th November 2013.

3

A further renewal order was then made on 13th January, 2014, by a consultant psychiatrist. It is not in dispute but that two errors were made in the course of completing this renewal form. First, the wrong part of the form was completed. The consultant filled out the reference to s. 15(2) of the Mental Health Act 2001 (‘the 2001 Act’) rather than to s. 15(3). Second, the wrong date was inserted, since it refers to (either) 13th or 14th April 2013. Having inspected the original on a number of occasions, I confess that it is hard to say whether the reference is to either 13 or 14. While the figure ‘4’ seems to have been written over the figure ‘3’, both are clearly visible. The reference to ‘2013’ is obviously wrong, since it should be to ‘2014’. The consultant immediately noticed these errors and wrote a brief memorandum to the effect that she hoped that this would not have implications for the subsequent Tribunal hearing.

4

These are entirely pardonable mistakes: which of us through force of habit have not, for example, mistakenly referred in correspondence to the old year having momentarily forgotten that we are now in a new year? Nevertheless, as it is this renewal order which forms the basis of the applicant”s current detention, there is no escaping the fact that this order contains these errors in relation to the document which forms the current legal basis of the applicant”s detention.

5

The Mental Health Tribunal nevertheless affirmed the applicant”s detention pursuant to s. 18(1) of the 2001 Act. It heard evidence from the consultant physician who clarified that she had intended to refer to 14th April, 2014. The Tribunal summarised its reasoning thus:

‘In essence, the Tribunal is of the view that these errors on the face of the document do not affect the substance of the order, in particular given the benefit of the receiving consultant physician”s evidence relating to these errors….The Tribunal...

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