R. -v- Byrne & Ors, [2007] IEHC 73 (2007)

Docket Number:2007 17 SS
Party Name:R., Byrne & Ors
Judge:O''Neill J.
 
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Neutral Citation Number: [2007] IEHC 73THE HIGH COURT[2007 No. 117 SS]IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELANDBETWEENM.R.APPLICANTAND

CATHY BYRNE, ADMINISTRATOR AND DR. FIDELMA FLYNN, CLINICAL DIRECTOR, SLIGO MENTAL HEALTH SERVICES, BALLYTIVNAN, CO. SLIGORESPONDENTSJUDGMENT of Mr. Justice O'Neill delivered on the 2nd day of March, 2007

On the 31st January, 2007 on an ex-parte application on behalf of the applicant I directed an enquiry pursuant to Article 40.4 of the Constitution into the legality of the detention of the applicant by the respondents, and I directed the respondents to certify in writing the grounds upon which the applicant was detained. That enquiry proceeded at 11 a.m. on the 2nd February, 2007.

The respondents certified that the ground upon which the applicant was detained was that she was detained pursuant to a "Renewal Order" made pursuant to s. 15(2) of the Mental Health Act, 2001 (hereinafter referred to as the Act), made on the 21st December, 2006, which Renewal Order was affirmed by a Mental Health Tribunal pursuant to s. 18(1) of the Act on the 9th January, 2007, both of which orders were said to have been made lawfully.

I concluded the enquiry on the 2nd of February, 2007 by holding that the applicant's detention was lawful and hereunder I set out my reasons for that conclusion.

The applicant is 43 years of age and for most of her adult life she has suffered from serious mental illness. For most of the past eleven years she has been an involuntary patient in the care of the respondents and since 2002 has been detained pursuant to the relevant statutory provisions then operative, in a special care unit, as distinct form an open admission unit.

The Mental Health Act, 2001 (Commencement) Order 2006, (SI 411 of 2006) brought sections 6, 8 to 30 and 56 to 75 inclusive of the Act into operation on the 1st November, 2006. At that time the applicant was detained by the respondents as a patient in the special care unit on foot of a Temporary Chargeable Patient Reception Order made pursuant to s. 184 of the Mental Treatment Act, 1945. This order authorised the detention of the applicant for a period of six months from the 21st June, 2006. By virtue of the provisions of s. 72(2) of the Act the applicant's treatment and detention was authorised by virtue of the Act of 2001 until the expiration of that period of six months.

In accordance with the provisions of s. 72(4) of the Act, the detention of the applicant was referred to a Mental Health Tribunal by the Mental Health Commission to be reviewed as if it had been authorised by Renewal Order under s. 15(2) of the Act of 2001.

This Mental Health Tribunal met on the 20th December, 2006 to review the detention of the applicant. The decision of this tribunal was to affirm the Admission Order on the grounds that the applicant suffered from a schizo affective disorder that was partially responded but continued to be associated with unstable and intrusive persecutory thoughts and limited insight.

The period specified in the Temporary Chargeable Patient Reception Order affirmed by the Tribunal expired on the 21st December, 2006. On the 21st December, 2006 Dr. Donagh O'Neill, Consultant Psychiatrist made a Renewal Order pursuant to the provisions of s. 15(2) of the Act of 2001. In this order, Dr. O'Neill certified that in his opinion the applicant should continue to be detained for a period not exceeding three months because she suffered from a mental disorder of the kind described in s. 3(1)(a) of the Act of 2001 and he further certified that his opinion was based upon the reason that the applicant continued to suffer from persecutory delusions, lacked insight, and was non-adherent in respect of treatment.

This Renewal Order of the 21st December, 2006 was referred by the Mental Health Commission to a Mental Health Tribunal. As with the previous Mental Health Tribunal, Mr. Peter Flynn Solicitor was appointed as legal representative to represent the applicant. Dr. Eugene Hill, Psychiatrist was appointed to examine her and he carried out his examination on the 3rd January, 2007 and furnished a written report on the 3rd January, 2007. The Tribunal sat on the 9th January, 2007. Its Chairman was John A. McCormack, a barrister, Dr. Mary MaGuire, a Consultant Psychiatrist and Mr. Eamon Boylan as the Tribunal Lay Member.

The proceedings of the Tribunal were attended by the applicant, and she was represented by Mr. Flynn. A written report from Dr. Eugene Hill was available but Dr. Hill did not attend in person. Dr. Donagh O'Neill was present in person and gave evidence to it. A written report dated 5th January, 2006 was made available by Dr. O'Neill to the Tribunal. The applicant gave evidence to the Tribunal similar to that given to the previous Tribunal on the 20th December, 2006 and it was to the effect that she accepted that she suffered from a mental illness for which she required inpatient treatment but she did not wish to be detained as an involuntary patient and further did not wish to be treated in the special care unit. Dr. O'Neill's evidence to the Tribunal, was that the applicant suffered from a "mental disorder" as defined in s. 3(1)(a) of the Act of 2001 as already certified by him in the Renewal Order, but also that her mental illness was such that it could be categorised as "mental disorder" as defined in s. 3(1)(b) of the Act of 2001.

In the course of his submissions to the Tribunal Mr. Flynn had submitted that the purported Renewal Order made by Dr. O'Neill on the 21st December was not valid as there was no evidence to justify the stated grounds of that order namely that because of the illness, disability or dementia, there was a serious likelihood of the applicant causing immediate and serious harm to herself or to other persons.

The Tribunal rejected that submission holding;"The Tribunal was not bound by the decision of Dr. O'Neill to characterise the mental disorder as constituting a serious likelihood etc., but only had to decide whether or not in its view the patient was at this time suffering from a mental disorder on the evidence before it." It is contended on this application that this ruling by the Tribunal was unlawful because it failed to take account of the obligation of the Tribunal to satisfy itself that the provisions of s. 15 of the Act had been complied with and that if there had been a failure to comply with that provision there was an obligation on the Tribunal to decide whether that failure affected the substance of the order or caused an injustice, which latter determination was not made by the Tribunal.

The Mental Health Tribunal decided to affirm the Renewal Order of the 21st December, 2006, in the following terms:"The patient continues to suffer from persecutory delusions and while her insight has improved somewhat but she continues to require a structured residential treatment and the Tribunal affirms Order." The reasons given in the order for the decision were as follows:

"In affirming the order the Tribunal held that; (1) There was clear evidence from Dr. O'Neill's report and the patient's own responses that the patient continues to suffer from a mental disorder, persecutory delusions and schizophrenia.

2) The patient benefits from the structured environment which her involuntary status ensures. She herself accepted she is not ready for discharge and also that the treatment she is receiving has been beneficial to her.

(3) In the event of her being changed to a voluntary status compliance with medication and O.T. would not be guaranteed."

The applicant challenges the lawfulness of her detention for the following reasons:(1) The Renewal Order purported to have been made by Dr. Donagh O'Neill on the 21st December, 2006 pursuant to s. 15 of the Act of 2001 was invalid and not made in accordance with law in that there was no proper basis for the certification by Dr. O'Neill that because of illness, disability or dementia there was a serious likelihood of the applicant causing immediate and serious harm to herself or other persons.

(2) The decision of the Mental Health Tribunal on the 9th January, 2007 which purported to affirm the Renewal Order of Dr. O'Neill was invalid and not made in accordance with law in that the Tribunal did not decide, as it was required by s. 18 of the Act of 2001 to do, whether the provisions of s. 15 of the said Act had been complied with and if there had been a failure to comply with that provision, whether the failure affected the substance of the order or caused an injustice and further failed to give notice of that decision and of the reasons for it in writing as was required by s. 18(5) of the Act of 2001.

(3) The Order of the Tribunal was invalid and not made in accordance with law because there had been a failure to comply with the provisions of s. 15 of the Act of 2001 and that failure was such that the Tribunal could not properly have concluded that the failure did not affect the substance of the order and did not cause an injustice.

(4) That the order of the Tribunal was further invalid and not made in accordance with law because the reasons advanced by the Tribunal for concluding that the applicant continued to suffer from mental disorder could not support a decision that the applicant continued to suffer from mental disorder as defined in s. 3 of the Act of 2001.

The following parts of the Act of 2001 are relevant to this application.

The preamble:"An Act to provide for the involuntary admission to approved centres of persons suffering from mental disorders, to provide for the independent review of the involuntary admission of such persons and for those purposes, to provide for the establishment of a Mental Health Commission and the appointment of Mental Commission Tribunals and an Inspector of Mental Health Services, to repeal in part the Mental Treatment Act, 1945, and to provide for related matters." Section 3:"3 - (1) In...

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