P.L. v The Clinical Director of St. Patrick's University Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IECA 29
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 29 [Article 64 Transfer],[C.A. No. 881 of 2014]
• Date: 14 February 2018

BETWEEN/

PL

APPELLANT

- AND -

THE CLINICAL DIRECTOR OF ST. PATRICK'S UNIVERSITY HOSPITAL

AND

DR. SEAMUS O'CEALLAIGH

RESPONDENTS

- AND -

THE ATTORNEY GENERAL

NOTICE PARTY

- AND -

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

[2018] IECA 29

Hogan J.

Ryan P.

Irvine J.

Hogan J.

Neutral Citation Number: [2018] IECA 29

Record No. 2014/881

[Article 64 Transfer]

THE COURT OF APPEAL

Judicial review – Voluntary patient – Mental health – Appellant seeking a declaration that the refusal of the respondent hospital to permit him to leave was unlawful – Whether a voluntary patient may leave a psychiatric institution having regard to the provisions of s. 23 of the Mental Health Act 2001

Facts: The appellant, who was a voluntary patient in the respondent hospital, St Patrick's University Hospital, sought a declaration that the refusal of the respondent hospital to permit him to leave was unlawful. The High Court (Peart J) refused to grant this relief. The appellant appealed to the Court of Appeal against that decision.

Held by Hogan J that a voluntary patient who expresses a desire to leave a secure unit at an approved centre remains free in principle to do so at any convenient time and may not be restrained by the hospital from leaving save in accordance with the provisions of s. 23 of the Mental Health Act 2001.

Hogan J held that he would allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of February 2018

1 This appeal against the decision of the High Court (Peart J.) raises the difficult question as to when a voluntary patient may leave a psychiatric institution having regard to the provisions of s. 23 of the Mental Health Act 2001 ('the 2001 Act'). In these judicial review proceedings the applicant, P.L., who was a voluntary patient in the respondent hospital, had sought a declaration that the refusal of the respondent hospital to permit him to leave was unlawful. These circumstances will be described in greater detail at a later stage in this judgment. The respondent hospital is an 'approved centre' for the purposes of the 2001 Act.

2 Peart J. refused to grant this relief for reasons I will also presently set out: see PL v. Clinical Director of St. Patrick's University Hospital [2012] IEHC 15, [2014] 4 I.R. 385. The applicant now appeals to this Court against that decision.

3 I should also record at the outset that Peart J. also delivered a second judgment in this matter on the 14th December 2012 which was consequent upon his first judgment: see [2012] IEHC 547, [2014] 1 I.R. 419. In that second judgment Peart J. refused to grant a declaration pursuant to s. 5(1) of the European Convention of Human Rights Act 2003 that certain 'rules of law' emanating from his second judgment were incompatible with the ECHR. While the applicant has also appealed against that second judgment, at the hearing of this appeal it was agreed between the parties that these issues would only arise in the event that the first appeal was to be unsuccessful. The present judgment, therefore, addresses only the issues arising from the first judgment.

4 Before considering these issues it necessary first to set out the background to this appeal.

The background to the appeal

5 Our narrative commences on the 26th August 2011 when the applicant became a voluntary patient at St. Patrick's University Hospital ('the hospital') following a psychotic episode at home. The applicant's general practitioner had made the necessary arrangements for this purpose. On arrival he was admitted to the Special Care Unit ('SCU'), where he was seen to display aggressive, violent and, at times, inappropriate behaviour. Mr. L. nevertheless accepted medication, and he appears to have settled somewhat. On the following day he was examined by a consultant psychiatrist. A care plan was then devised which involved close observation and a continuation of certain medication. Mr. L. also consented to histories being taken from family members and from his general practitioner.

6 The applicant remained in the SCU where he was treated as a voluntary patient until the 13th September 2011. On that day he expressed a desire to leave the hospital, but the provisions of s. 23 of the 2001 Act were then invoked, so that he was not then legally free to leave the hospital. (Since these provisions are at the heart of the appeal I will later set them out following the conclusion of the narrative). Immediately following the request to leave the hospital Mr. L. was then examined by a Dr. Ó Ceallaigh as required by s. 24 of the 2001 Act. As the latter had formed the opinion that the applicant was suffering from a mental disorder within the meaning of s. 3 of the 2001 Act, the applicant was then detained pursuant to s. 24(1) of the Act.

7 Section 24 of the 2001 Act then provides for an examination of the patient by a second consultant psychiatrist who also formed the view that the applicant should be detained. An admission order was then signed by Dr. Ó Ceallaigh for that purpose on the 14th September 2011. This admission order was reviewed by a Mental Health Tribunal on the 27th September 2011 when that order was affirmed.

8 A renewal order was signed by Dr. Ó Ceallaigh on the 27th September 2011, which order authorised the applicant's detention until the 26th December 2011. On the 11th October 2011 the renewal order was affirmed by a Mental Health Tribunal. The Tribunal's decision recorded that while Dr. Ó Ceallaigh accepted that the applicant was making progress and taking his medication, Mr. L. had nevertheless indicated that he would prefer not to be in the hospital. The Tribunal further recorded that on the previous day Mr. L. had expressed a wish to leave. Dr. Ó Ceallaigh is noted as having given his opinion that the applicant's judgment and capacity 'remain significantly impaired'; that the applicant required a further period in hospital for treatment and that he could not be treated in a less secure environment.

9 At that point there was a somewhat unusual development in that on the following day, namely, the 12th October 2011, Dr. Ó Ceallaigh revoked the renewal order. On that date Dr. Ó Ceallaigh had examined the applicant and expressed the opinion on Form 14 pursuant to s. 28 of the 2011 Act that he was no longer suffering from a 'mental disorder' as defined in the Act. The applicant was then discharged pursuant to the provisions of that section. Section 28(1) of the 2001 Act provides:

'Where the consultant psychiatrist responsible for the care and treatment of a patient becomes of opinion that the patient is no longer suffering from a mental disorder, he or she shall by order in a form specified by the Commission revoke the relevant admission order or renewal order, as the case may be, and discharge the patient.'

10 The applicant was not, however, discharged in the ordinary sense of that term. He did not, for example, leave the hospital and neither was he invited or even allowed to leave. He remained as previously in the SCU, which is a locked ward, and even though then a 'voluntary patient' as defined, he was nevertheless not free to leave. As Peart J. put it in the judgment under appeal ( [2014] 1 I.R. 385, 389):

'So, in reality he was simply discharged from his status as a detained patient under a renewal order, rather than being actually discharged from hospital as such. He subsequently expressed an intention to leave, but was not permitted to do so, and no order to detain him under s. 24 of the Act has been made to again detain him.'

11 In an affidavit filed in these proceedings Dr. Ó Ceallaigh explained his decision to revoke the renewal order on the 12th October 2011. He stated that following the making of the earlier renewal order on the 27th September 2011 he had sought the views of Dr. Mohan, a Consultant Forensic Psychiatrist attached to the Central Mental Hospital. Dr. Mohan's advice had not been received by the 11th October 2011

12 In the period leading up to the Tribunal hearing on the 11th October 2011 Dr. Ó Ceallaigh had conducted an ongoing assessment of the applicant's condition and had engaged with him both on a one to one basis as well as part of a multi-disciplinary review process. He was then of the view that the applicant had limited insight in relation to his illness and continued to require inpatient treatment. The applicant's need for continuing care in the Special Care Unit was accordingly kept under ongoing review and he considered that the effective management of the psychosis required the maintenance of a safe, stable environment with the reduction of exposure to stressors and stimuli which have been associated with previous relapses into psychotic symptoms.

13 Dr. Ó Ceallaigh further explained that on that date he had a lengthy consultation with the applicant who had expressed disappointment and frustration at the outcome of the Tribunal's decision to affirm the renewal order. Mr. L. was nonetheless apparently forthcoming enough to accept that he was delusional during the earlier part of his admission. The applicant apparently displayed no aggression and was warm and appropriate at the interview. He also denied any thoughts of deliberate self harm or suicidal ideation. Dr. Ó Ceallaigh stated that by the 12th October 2011 he had formed the opinion that, given the improvement in the applicant's mental state, the applicant was able to balance the benefits and the disadvantages of remaining in hospital on a voluntary basis, and that he was capable of choosing to remain in hospital and had, in fact, elected to do so. As Peart J. explained ( [2014] 4 I.R. 385, 391):

'He informed the applicant of his decision that he should remain in the Special Care Unit, and the applicant apparently expressed his happiness with his change in status. It was following this consultation that Dr. Ó Ceallaigh revoked the...