RGF v The Clinical Director Department of Psychiatry Midland Regional Hospital Portlaoise
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] IEHC 502 |
| Docket Number | Record No. 2021 956 SS |
| Court | High Court |
In the Matter of an Application Pursuant to Article 40.4.2 of the Constitution of Ireland
[2021] IEHC 502
Record No. 2021 956 SS
THE HIGH COURT
Unlawful detention – Voluntary patient – Habeas corpus – Applicant seeking habeas corpus – Whether the applicant was a voluntary patient within the meaning of the Mental Health Act 2001
Facts: Where the order detaining the applicant in the Department of Psychiatry in Portlaoise on an involuntary basis had been quashed by a Mental Health Tribunal, and where the applicant took immediate steps to leave thereafter, he argued that he was not a voluntary patient, that s. 23 and s. 24 of the Mental Health Act 2001 could therefore not be invoked in respect to him and that his detention in the Department of Psychiatry was therefore unlawful. He accordingly brought habeas corpus proceedings seeking his release under Article 40.4 of the Constitution. The applicant argued that he was not a voluntary patient because he wished to leave the hospital and because he was not receiving treatment from the time the Tribunal quashed the detention order.
Held by the High Court (Hyland J) that the applicant was being treated within the meaning of s. 2 of the 2001 Act during the relevant 70-minute period between the revocation of the renewal order and the invocation of s. 23, and therefore came within the definition of a voluntary patient. Hyland J held that this meant the respondent was entitled to invoke the procedures under s. 23 and s. 24.
Hyland J held that the applicant’s detention was on foot of an admission order of 30 June 2021 made pursuant to those sections. Hyland J held that, accordingly, the applicant’s detention had not been shown to be unlawful. Hyland J refused the order of habeas corpus.
Application refused.
JUDGMENT of Ms. Justice Niamh Hyland delivered on 19 July 2021
This case raises the net issue of when a patient may be considered a voluntary patient within the meaning of s. 23 of the Mental Health Act 2001 (the “2001 Act”). Section 23 permits a “voluntary patient” to be detained for the purpose of invoking the s. 24 procedure, which permits detention of a person suffering from a mental disorder for no more than 21 days. But s. 23 is only applicable to voluntary patients. Here, where the order detaining the applicant in the Department of Psychiatry in Portlaoise on an involuntary basis had been quashed by a Mental Health Tribunal, and where the applicant took immediate steps to leave thereafter, he argues that he was not a voluna;#tary patient, that s.23 and s. 24 could therefore not be invoked in respect to him and that his detention in the Department of Psychiatry was therefore unlawful. He accordingly brings habeas corpus proceedings seeking his release under Article 40.4.
I have concluded that despite the applicant's clearly stated desire to leave the Department of Psychiatry, he was being “treated” within the meaning of the Act for the reasons I explain in this judgment and therefore he comes within the definition of a voluntary patient. In the circumstances his detention is not unlawful.
Having come to the attention of An Garda Siochana, the applicant was taken to Our Lady of Lourdes Hospital in Drogheda on an unspecified date. He was subsequently detained on foot of an Admission Order on 21 May 2021 in Drogheda pursuant to s. 23 and 24 of the 2001 Act on the basis that he was suffering from a mental disorder and fulfilled the criteria in s. 3(1)(b)(ii). Although the affidavits do not refer to his voluntary admission, because he was detained under s. 23 he must have been a voluntary patient prior to his detention on foot of the Admission Order of 21 May 2021. That Order was affirmed by a Mental Health Tribunal on 10 June 2021.
It appears that at some point he was moved to the Department of Psychiatry in the Midland Regional Hospital in Portlaoise (the “approved centre”), although the date of that move is not given. On 10 June 2021, a Renewal Order was made pursuant to s. 15(2) of the 2001 Act, to come into effect on 11 June 2021.
On 30 June 2021 at 11.04am a Mental Health Tribunal convened to review the Renewal Order pursuant to s. 18 of the 2001 Act. Submissions were made on the applicant's behalf to the effect that the Renewal Order and patient notification form were completed in the wrong name and both contained the wrong date of birth. The name given was [REDACTED] although the name of the applicant is RGF. His date of birth was given as [REDACTED] but it is in fact [REDACTED].
In a comprehensive and clear decision, all the more impressive for having been swiftly delivered at 2.16pm on the same day, the Tribunal concluded that the patient was suffering from a mental disorder. It noted that this mistake should not have been made in the Renewal Order, given that the approved centre had access to family members who could provide the patient's correct name. In the circumstances the Tribunal did not believe it would be appropriate to use its powers under s. 18(1) to cure the failure to correctly complete the Form 7 and patient notification form. The Tribunal were satisfied “that affirming a renewal order made out with the wrong name and date of birth of the patient affects the substance of the order and would cause an injustice”.
Accordingly, the Tribunal revoked the Renewal Order of 10 June 2021.
The decision was read out in full to the applicant via telephone at 2.10pm. At 2.16pm Mr Carmody, solicitor for the applicant, received instructions that the applicant wished to leave the hospital. In the grounding affidavit sworn 1 July 2021, Mr. Carmody averred that he spoke with the staff nurse and related to him that the Renewal Order had been revoked and that the applicant was leaving the approved centre.
As discussed below, steps were then taken under s.23 and 24 to detain the applicant. Those steps were recorded in what is known as a “Form 13” entitled “Certificate and Admission Order to detain a voluntary patient”. This Form records the applicant as having expressed a wish to leave the approved centre at 3.15pm on 30 June 2021. At 3.20pm, the Form records that s. 23 was invoked to prevent the applicant leaving the hospital on the basis that the applicant was “very psychotic with religious delusions and lacks all insight”. The Form identifies that the professional who detained the applicant was Dr Moloney, the applicant's treating consultant psychiatrist. He is identified as having examined the patient at 3.30pm and detained him on the basis of s. 3(1)(b)(i) on what is known as the “treatment ground”, i.e. that the patient requires treatment in an approved centre.
Part 2 of the Form refers to the certificate required by s. 24(2)(a) and states that the certificate is to be completed by another consultant psychiatrist, following referral by the consultant psychiatrist responsible for the care and treatment of the person. That psychiatrist was a Dr Daly who identifies that he is detaining the applicant on the basis of s. 3(1)(b)(i) and refers inter alia to his multiple religious delusions, poor insight and judgements. That certificate is signed at 3.46pm.
Part 3 of the Form is the Admission Order and it refers to a certificate having been issued under s. 24(2)(a) by the second consultant psychiatrist, being Dr Daly. The Admission Order is made by Dr Moloney and it directs the reception, detention and treatment of the applicant for a period of 21 days from the date of the making of the Order and is identified as having been made at 3.50pm. It is this Admission Order of 30 June 2021 that is the subject of the habeas corpus application. The Order expires on 20 July 2021.
It may be seen from the above description that s.23 is used to detain the patient while an examination is being carried out to consider whether the conditions in s.24 are met. In this case, those conditions were considered to be met.
A patient notification form was given to the applicant. The form was signed by Dr Moloney with a time noted of 3.55pm. It states that the Admission Order would end on 20 July 2021. It identifies that the Admission Order is made under s. 24. The notification identifies that the patient is entitled to legal representation and that the Admission Order will be reviewed by a Mental Health Tribunal in accordance with s. 18 of the 2001 Act. Section 18 provides that where an Admission Order has been referred to a Tribunal, the Tribunal shall review the detention of the patient concerned.
Returning to the account given by Mr Carmody in his affidavit, he says that he received a call from the applicant at 3.51pm advising that he was prevented from leaving the approved centre. On 30 June 2021, Mr Carmody wrote to the respondent seeking the immediate release of the applicant on the basis that the Renewal Order had been revoked, the applicant wished to leave the approved centre, and was at no time a voluntary patient.
The applicant has also sworn an affidavit of 5 July 2021. I identify and address his evidence in some detail below when considering the question of treatment. In short, he identifies that at no time during the period between the Tribunal decision and being told that he was being detained, was he given or did he take any treatment and at no time did he agree to remain in the hospital as a voluntary patient.
Section 2 of the 2001 Act defines the terms “treatment” and “ voluntary patient” as follows:
“treatment”, in relation to a patient, includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder;
…
“voluntary patient” means a person...
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