S.M. v Mental Health Commission

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McMahon
• Judgment Date: 31 October 2008
• Neutral Citation: [2008] IEHC 441
• Date: 31 October 2008
• Docket Number: [2008 No. 749

M (S) v Mental Health Commissioner & Ors

JUDICIAL REVIEW

BETWEEN

SM

APPLICANT

AND

THE MENTAL HEALTH COMMISSIONER, THE MENTAL HEALTH TRIBUNAL, THE CLINICAL DIRECTOR OF ST. PATRICK'S HOSPITAL, DUBLIN

RESPONDENTS

AND

ATTORNEY GENERAL,

AND

HUMAN RIGHTS COMMISSION NOTICE PARTIES

[2008] IEHC 441

749/2008

THE HIGH COURT

MENTAL HEALTH

Detention

Involuntary patient -Renewal order - Period of order - Specified period - Whether responsible consultant psychiatrist authorised to make renewal order "for a period not exceeding 12 months" - Mental Health Act 2001 (No 25), ss 15 and 28 - Relief granted with stay (2008/749JR - McMahon J - 31/10/2008) [2008] IEHC 441

M(S) v Mental Health Commission

STATUTE

Interpretation

Literal interpretation - Purposive or paternal approach - Whether power to make order for period not exceeding twelve months means definite period must be fixed - Whether literal approach leads to ambiguity and absurdity - DPP (Ivers) v Murphy [1999] 1 IR 98 applied; Pepper v Hart [1993] AC 593 followed; Gooden v St Otteran's Hospital (2001) [2005] 3 IR 617 distinguished; In re Philip Clarke [1950] IR 235 mentioned; Mental Health Act 2001 (No 25), ss 15 & 28 - Relief granted with stay (2008/749JR - McMahon J - 31/10/2008)

M(S) v Mental Health Commission

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 PART II

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S10(4)

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S17

MENTAL HEALTH ACT 2001 S28

MENTAL HEALTH ACT 2001 S4(1)

MENTAL HEALTH ACT 2001 S4(3)

O'D v KENNEDY (CLINICAL DIRECTOR OF CENTRAL MENTAL HOSPITAL) & HEALTH SERVICE EXECUTIVE 2007 3 IR 689 2007/48/10228 2007 IEHC 129

GOODEN v ST OTTERAN'S HOSPITAL & WATERFORD REGIONAL HOSPITAL 2005 3 IR 617 2001/11/2896

MENTAL TREATMENT ACT 1945 S194

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE ACT 2006 S10

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S23(1)

MENTAL HEALTH ACT 2001 S24(5)

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

C (C) v IRELAND & ORS 2006 4 IR 1 2006 2 ILRM 161

MENTAL HEALTH ACT 2001 S15(1)

MENTAL HEALTH ACT 2001 S19

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

DOYLE v DIRECTOR OF CENTRAL MENTAL HOSPITAL & LYNCH UNREP FINLAY-GEOGHEGAN 20.3.2007 2007/16/3286 2007 IEHC 100

MENTAL TREATMENT ACT 1945 S189

MENTAL HEALTH ACT 2001 S25

M (A) v KENNEDY (CLINICAL DIRECTOR OF CENTRAL MENTAL HOSPITAL) UNREP PEART 24.4.2007 2007/37/7701 2007 IEHC 136

MENTAL TREATMENT ACT 1945 S189(1)(a)(i)

1 JUDGMENT of Mr. Justice McMahondelivered on the 31st day of October, 2008

1. The Issue and Section 15 of the Mental Health Act 2001

2 The main issue to be addressed at this stage in the proceedings is whether the power vested in the consultant psychiatrist under s. 15 of the Mental Health Act 2001, is satisfied when he makes a renewal order expressly stating it to be one which does "not exceed 12 months".

3 Section 15 of the Mental Health Act 2001 reads as follows:-

4 2 " 15.-(1) An admission order shall authorise the reception, detention and treatment of the patient concerned and shall remain in force for a period of 21 days from the date of the making of the order and, subject to subs. (2) and s. 18 (4), shall then expire.

5 (2) The period referred to in subs. (1) may be extended by order (to be known as and in this Act referred to as 'a renewal order') made by the consultant psychiatrist responsible for the care and treatment of the patient concerned for a further period not exceeding 3 months.

6 (3) The period referred to in subs. (1) may be further extended by order made by the consultant psychiatrist concerned for a period not exceeding 6 months beginning on the expiration of the renewal order made by the psychiatrist under subs. (2) and thereafter may be further extended by order made by the psychiatrist for periods each of which does not exceed12 months (each of which orders is also referred to in this Act as 'a renewal order').

7 (4) The period referred to in subs. (1) shall not be extended under subs. (2) or (3) unless the consultant psychiatrist concerned has not more than one week before the making of the order concerned examined the patient concerned and certified in a form specified by the Commission that the patient continues to suffer from a mental disorder."

2. The Factual Background

8 The factual background to these proceedings is succinctly set out in the outline submissions on the part of the third named respondent in this case and can be usefully reproduced here for the purposes of this application:-

"Dr. Corry is the applicant's responsible consultant psychiatrist and the factual background is set out in Dr. Corry's grounding affidavit, grounding the statement of opposition. The applicant is now 36 years of age. Since the age of 19, she has been admitted to St. Patrick's Hospital on 23 occasions, of which 15 were involuntary admissions. Unfortunately, her condition is deteriorating as the interval between admissions has become shorter, and her admissions have increased in frequency. There has been a constant and sustained pattern of relapse upon discharge from hospital, attributable almost entirely to her inability to remain on necessary stabilising medication upon release. She has a history of violence towards both herself and others, and has attempted suicide on a number ofoccasions. Prior to her readmission in August 2007, she had seriously assaulted her mother and had attempted to throw herself into the river at the back of her mother's house."

9 Dr. Corry is of the view that the applicant's ongoing medical needs can only be met by the applicant taking sustained and stabilising medication. Ideally, the more suitable regime for the applicant's care is by way of supported accommodation rather than involuntary admission in St. Patrick's Hospital, where necessary "supports" would ensure that her significant medication regime is adhered to. She is emphatic that the ongoing supervised administration of her medication is crucial to the applicant's wellbeing. Both she (and the other consultant psychiatrists who have assessed the applicant, Dr. Mohan and Dr. Walsh), are of the view that if she is discharged other than into a supportive environment, she will relapse with consequent risk to herself and others. There is a demonstrable case history which supports this view. Therefore, at this moment in time, she is not medically fit to be discharged into the community in an unsupported and unsupervised situation. As Dr. Corry has emphasised, the applicant is subject to daily ongoing review by Dr. Corry in conjunction with the nursing and medical staff of St. Patrick's Hospital. Dr. Corry has also sought the opinion of Dr. Mohan when she sought his updated opinion when the applicant's condition improved after admission. As Dr. Corry has emphasised, in para. 21 of her affidavit, the order detaining the applicant will be revoked if there is a change incircumstances such that the applicant can be safely discharged having regard to the provisions of s. 4 of the Act of 2001.

10 It is further submitted that Dr. Corry has made persistent, systematic attempts to secure appropriate supported accommodation for the applicant as set out ... in ... her first affidavit, and this approach is ongoing."

11 These facts are not in dispute, save to the extent that in a more recent opinion of Dr. Mohan, he seems to have hardened his opinion somewhat as to the suitability of the patient for treatment in supervised accommodation.

3. The Mental Health Act 2001

12 Involuntary admission of persons to approved centres is legislated for in Part II of the Mental Health Act 2001. An application for a recommendation that a person be involuntarily admitted to an approved centre may be made to a registered medical practitioner by certain persons listed in the legislation (section 9). If the general practitioner, having examined the individual, is satisfied that he/she suffers from a mental disorder, the general practitioner may make a recommendation that the person be admitted to an approved centre. Such a recommendation remains in force for seven days (section 10). Once a general practitioner makes such a recommendation he shall send it to the clinical director of the approved centre concerned as well as furnishing a copy of the recommendation to the subject matter of the recommendation (section 10(4)). When the recommendation is received by the clinical director of the approved centre, a consultant psychiatrist on the staff of the approved centre shall carry out an examination,as soon as may be, of the patient. After such an examination the consultant psychiatrist may refuse to make an involuntary admission order or may make such an order. Where an involuntary admission order is made then a copy of it is sent to the Mental Health Commission (hereafter "the Commission"). The Commission informs the patient that he/she is entitled, inter alia, to a review under provisions of s. 18 of the Act and that he/she is entitled to appeal to the Circuit Court against a decision of the tribunal under the same section i.e. section 18. Following the receipt by the Commission of a copy of an admission order or a renewal order, the Commission shall, as soon as possible refer the matter to a tribunal and direct in writing that a member of the panel of consultant psychiatrists is to: i) examine the patient, ii) interview the consultant psychiatrist responsible for the care and treatment of the patient and iii) review the records relating to the patient to determine that the patient is suffering from a mental disorder. This independent psychiatrist reports in writing within...