R.L. v The Clinical Director of St. Brendan's Hospital

JurisdictionIreland
JudgeMr. Justice Feeney
Judgment Date17 January 2008
Neutral Citation[2008] IEHC 11
CourtHigh Court
Docket Number[2008 No. 46 SS]
Date17 January 2008

[2008] IEHC 11

THE HIGH COURT

[No. 46 SS/2008]
L (R) v Clinical Director of St Brendans Hospital (Rohill) & Mental Health Commission

BETWEEN

R.L.
APPLICANT

AND

THE CLINICAL DIRECTOR OF ST. BRENDAN'S HOSPITAL, DR. HASEEB KHAN ROHILL AND THE MENTAL HEALTH COMMISSION
RESPONDENTS

CONSTITUTION ART 40.4.2

MENTAL HEALTH ACT 2001 S13

MENTAL HEALTH ACT 2001 S13(2)

MENTAL HEALTH ACT 2001 S14

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

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S16

H (J) v LAWLOR UNREP PEART 25.6.2007 2007 IEHC 225

Q (W) v MENTAL HEALTH COMMISSION & ORS UNREP O'NEILL 15.5.2007 2007 IEHC 154

CONSTITUTION ART 40.4

RSC O.99

MENTAL HEALTH

Detention

Involuntary - Inquiry into complaint of unlawful detention - Involuntary admission for treatment - Validity of detention - Whether removal to approved centre unlawful - Whether unlawful removal rendered detention invalid - H(J) v Lawlor [2007] IEHC 225, (Unrep, Peart J, 25/6/2007) and Q(W) v Mental Health Commission [2007] IEHC 154, (Unrep, O'Neill J, 15/5/2007) - Mental Health Act 2001(No 25), ss 13 and 14 - Detention found to be lawful (2008/46SS - Feeney J - 17/1/2008) [2008] IEHC 11

L(R) v Clinical Director of St Brendan's Hospital

1

JUDGMENT of Mr. Justice Feeneydelivered on the 17th day of January, 2008

APPEARANCES

For the Applicant:

MR. T. O'LEARY SC

MR. NOLAN BL

Instructed by:

MS. S. BINCHY

SHALOM BINCHY & CO

118, THE CAPEL BUILDING

MARY'S ABBEY

DUBLIN 7

For the second Named Respondent:

MR. C. FERRITER SC

Instructed by:

MR. G. WOODS

ARTHUR COX

EARLSFORT CENTRE

EARLSFORT TCE

DUBLIN 2

2

COPYRIGHT: Transcripts are the work of Gwen Malone stenography Services and they must not be photocopied or reproduce in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

THE HEARING COMMENCED AS FOLLOWS ON THURSDAY 17TH JANUARY 2008
3

MR. JUSTICE FEENEY: I am grateful to the parties for their assistance in the presentation of this case and for the written submissions and for the identification of the appropriate case law, it has greatly facilitated the Court in being able to address what is always a matter which must be dealt with in a speedy and efficient manner, and that is an application under Article 40.4.20 of the Constitution. This is such an application, being an inquiry into the lawfulness of the detention of the Applicant under the Mental Health Act 2001.

4

It is an application under the Constitution and relates to an issue in relation to the alleged restriction and alleged unlawful restriction on the liberty of the Applicant. The Constitution guarantees personal liberty and therefore the courts have always had regard, and careful regard, to the issue of any suggestion that a person's liberty is being unlawfully interfered with or if a person is being unlawfully detained.

5

In this instance it is clear that a person can only be detained in accordance with the law, but it is also the legal position, long established by the Courts, that anirregularity of the process does not necessarily make a detention unlawful, this is particularly so when one has regard to the particular scheme, and in particular the entirety of the scheme under the 2001 Act.

6

Here we are faced with a situation where if there is any unlawful detention, as contended for by the Applicant, it is only up to the time of the order, the Admission Order, which was made on the same day as the removal.

7

The sole complaints, other than a complaint concerning the manner in which Dr. Leader examined the Applicant, and I will deal with that later, all other complaints relate to the removal of the Applicant pursuant to the provisions of Section 13 of the Mental Health Act 2001.

8

There are three complaints made in relation to a suggested breach of Section 13(2) which relate to the removal of the Applicant to the First Named Respondent's hospital. It was suggested that there was a failure in a number of regards in relation to how Section 13(2) was applied in relation to the lack of evidence concerning the inability to arrange for the removal, in relation to the manner of the request of the registered medical practitioner and, particularly, in relation to the absence of members of staff of the approved centre being involved in the actual removal.

9

Inherent in the application and absolutely as a fundamental to the success of the application brought by the Applicant would be a contention that the unlawful removal pursuant to Section 13 infects and has the effect of rendering the Admission Order made under Section 14 invalid.

10

There is in fact no dispute but that the criteria required for a valid Admission Order, other than in relation to the circumstances of the removal and the manner in which the Applicant was received in the approved centre, applied in this case and that the Admission Order viewed in isolation, was properly and validly made on 22nd December 2007. Therefore it is inherent, on the arguments put forward on behalf of the Applicant, that the detention made pursuant to the Admission Order is infected by the suggested illegal act or acts under Section 13. The Court is satisfied that the only matter before the Court is the question of unlawful detention. The Court is satisfied that it properly considers same as of today's date, but even if the Court were to look at it as of the date upon which the matter first came before the Court the Court would have arrived at the same view, that the detention of this Applicant is a lawful detention.

11

The Complainant makes complaint of non-compliance with Section 13, and even if it was established the Court issatisfied that that does not vitiate or relate to a valid Admission Order made under Section 14. This view is significantly reinforced having regard to Section 18 of the Act of 2001, wherein Section 18(1)(a)(1) it is indicated that the provisions of Sections 9, 10 12, 14, 15 and 16 have been complied with is a matter which require consideration by the Review Tribunal, that is not so in relation to Section 13. When one looks at the scheme of the Act that is not surprising because Section 13 relates to the manner in which somebody is brought to the institution and received and not detained.

12

Once received, and the neutral term "received" is used in Section 14, it is at that stage where the possibility of Admission Order resulting in the detention of a person arises, and it is at that stage, having received the person, that then an examination must be carried out "as soon as may be", and it is that examination which can give rise to a qualifying medical practitioner being satisfied that the person is suffering from a mental disorder. That gives rise to a series of obligations on the institution and doctors and a series of protections for the person who is admitted. It is the Admission Order which is central to the scheme under the Act and that view which the Court has formed is, as the Court has indicated, reinforced by the provisions of Section 18 of the Act. The scheme under the Act recognises the real and significant stepof an Admission Order and provides real and significant rights and obligations thereafter.

13

Section 14 is not dependent upon how a person arrived at an approved centre, the word used in the section is the word "received". The obligation which arises under Section 14 is "as soon as may be to carry out an examination" and to determine whether or not the consultant carrying out that examination has determined that the person is suffering from a mental disorder.

14

Removal or means of removal is not and cannot be read as a sine qua non to an Admission Order. An Admission Order is a separate and stand-alone matter.

15

In this instance the Court is satisfied that the Admission Order made on 22nd December 2007 was a properly made Admission Order and therefore as of the date of the application to the High Court in January of this year the Applicant was in lawful detention. That position continues to be the case as a Renewal Order has now been made and there is no issue raised in relation to the validity of that Renewal Order.

16

It is appropriate to identity certain authorities which have been of assistance to the Court in arriving at this particular view. The Court shall start its review of the authorities by referring to the decision of Peart J. on 25th June 2007 in the unreported decisionof JH v. Professor Brian Lawlor, clinical director of Jonathan Swift Clinic, St. James Hospital, Dublin. That was also an application for an inquiry pursuant to Article 40.4.2O of the Constitution and also related to the provisions of the Mental Health Act 2001.

17

There are two particular portions of the judgment of Peart J. which were of assistance to the Court in arriving at the view which it has formed today, the first is to be found on page 12 of his judgment where he states:

"The Court must have regard to the best interests of the Applicant when balancing the nature of the failure to adhere strictly to the procedures and time limits referred to in the Act against the need in the Applicant's own best interests to be detained for care and treatment. It is therefore not every incident of non compliance which will render the detention of a person to be unlawful, particularly where no injustice has occurred and where no protection which the Applicant is entitled to under the Statutory Scheme has been denied to him."

18

That is a particularly appropriate quotation on the facts of this case given the immediate implementation in this instance upon the Applicant being received in the hospital of the Section 14 procedures concerning whether or not to make an Admission Order and the legal protections and...

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