P. McG. v The Medical Director of the Mater Misericordia Hospital, Dublin and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 29 November 2007
• Neutral Citation: [2007] IEHC 401
• Court: High Court
• Date: 29 November 2007
• Docket Number: [2007 No. 1413 SS]

[2007] IEHC 401

THE HIGH COURT

Record Number: No.1413 SS/2007

McGreevy v Medical Director of the Mater Misericordia Hospital

Between:

Patrick McGreevy

Applicant

And

The Medical Director of the Mater Misericordia Hospital In the City of Dublin

Respondent

And

The Clinical Director of St. Aloysius Ward Psychiatric Unit of the Mater Misericordia Hospital in the City of Dublin

And

The Health Service Executive And, by order The Mental Health Tribunal

Notice Parties

CONSTITUTION ART 40.4

MENTAL HEALTH ACT 2001 S22

MENTAL HEALTH ACT 2001 S17(1)(b)

MENTAL HEALTH ACT 2001 S18

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

MENTAL HEALTH ACT 2001 S4(1)

DOYLE v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL UNREP FINLAY GEOGHEGAN 20.3.2007 2007 IEHC 100

M (A) v KENNEDY, CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL UNREP PEART 24.4.2007 2007 IEHC 136

MENTAL HEALTH ACT 2001 S22(1)

MENTAL HEALTH ACT 2001 S22(3)

MENTAL HEALTH ACT 2001 S18(1)(a)

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S16

1 Mr Justice Michael Peart delivered on the 29th day of November 2007:

2 This matter came before the Court on the 3 ^rd October 2007 by way of an application for the release of the applicant pursuant to Article 40.4 of the Constitution. Having heard the evidence and the submissions of all parties represented before me I concluded that while there had been a failure to comply with the requirements of s. 22 of the Mental Health Act, 2001 when a decision was taken to move the applicant from St Aloysius Ward, an approved centre for the purposes of the Act in the respondent's hospital, to a medical ward therein, namely St. Teresa's Ward so that he could receive medical treatment as opposed to psychiatric treatment, since his transfer was not arranged by the clinical director of an approved centre as required by the section, this failure was not such as to render his detention unlawful to the extent that the order sought should be made. I gave my reasons in an ex tempore ruling at the conclusion of submissions on the 3 ^rd October 2007, and indicated that I would deliver a written judgment in due course in case it was of assistance in any future application.

3 I will first set out a brief history of relevant facts and events as are disclosed in the affidavit sworn to ground the application by Ms. Niamh Moran, the solicitor assigned by the Mental Health Commission to represent the interests of the applicant pursuant to the provisions of s. 17(1)(b) of the Act, and the documents exhibited therein. It would be useful at this point also to set out the provisions of s. 22 which are at the heart of the present application. They are:

4 2 "22. - (1) A clinical director of an approved centre may arrange for the transfer of a patient detained in that centre for treatment to a hospital or other place and for his detention there for that purpose.

5 (2) A patient removed under this section to a hospital or other place may be kept there so long as is necessary for the purpose of his or her treatment and shall then be taken back to the approved centre from which he or she was transferred.

6 (3) The detention of a patient in a hospital or other place under this section shall be deemed for the purpose of this Act to be detention in the centre from which he or she was transferred."(my emphasis)

7 Ms. Moran represented the applicant at the review hearing in respect of a Renewal Order dated 5 ^th September 2007 held on the 25 ^th September 2007 pursuant to the provisions of s. 18 of the Act. Evidence given at that review hearing included evidence from John Sheehan, Consultant Psychiatrist and according to Ms. Moran he gave evidence as to the applicant's 'medical cum psychiatric condition'. It appears that the applicant had become medically unwell and that in order to address his medical condition he was moved from St Aloysius's Ward, which is a psychiatric unit within the Mater Hospital and an approved centre for the purpose of the Act, to St. Teresa's Ward, which is in the medical part of the same hospital hut which is not an approved centre for the purpose of the Act. It would appear that on the 20 ^th September 2007 those personnel in charge of the applicant had become of the view that his medical condition had deteriorated significantly and that he need to be moved to St. Teresa's Ward so that investigations could be carried out to determine the cause of the deterioration and any necessary treatment for his physical ailments could be treated appropriately.

8 Ms. Moran had the opportunity at the review hearing to question Dr Sheehan, and he confirmed to her that St. Teresa's ward was not an approved centre for the purpose of the Act. According to her affidavit she asked him also to confirm that the transfer of the applicant from the approved centre in the Mater Hospital to St. Teresa's Ward had been approved by the clinical director as required by s. 22 of the Act. He himself is not the clinical director. That person in fact is based at St. Vincent's Hospital, Dublin and, according to Dr Sheehan in answer to Ms. Moran, he had not given the "approval' referred to, although he had placed on the applicant's medical records a note requesting that the applicant be transferred to a medical ward. He confirmed that he had not spoken to the clinical director about the matter.

9 Ms. Moran submitted to the Mental health Tribunal that in these circumstances it could not affirm the Renewal Order given that the applicant's detention in St. Teresa's Ward was not in accordance with the provisions of s. 22 of the Act. Nevertheless the Tribunal affirmed the applicant's detention under the Renewal Order. The record of the proceedings before the Tribunal as exhibited by Ms. Moran shows that the submission made by her was considered and that in spite of same the Tribunal, while expressing some reservations about the matter raised, considered that the provisions of s. 22 of the Act were outside its remit since that section is not one of the sections referred to in s.18 (1)(a)(i) of the Act, and affirmed the detention of the applicant under Renewal Order since all necessary requirements for doing so were met. The final paragraph of the Tribunal's decision states as follows:

"While we are affirming the order, conscious of our duty under s. 4 of the Act, acting in the best interests of the patient, this Tribunal is concerned that the patient is being treated in St. Teresa's Ward which is outside the centre, without the clinical director's express...