S.O v Clinical Director of the Adelaide and Meath Hospital of Tallaght

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 25 March 2013
• Neutral Citation: [2013] IEHC 132
• Court: High Court
• Date: 25 March 2013

O (S) v Clinical Director of the Adelaide & Meath Hospital of Tallaght

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

S.O.

APPLICANT

AND

CLINICAL DIRECTOR OF THE ADELAIDE AND MEATH HOSPITAL OF TALLAGHT

RESPONDENT

[2013] IEHC 132

[No. 495 S.S./2013]

THE HIGH COURT

CONSTITUTIONAL LAW

Legality of detention

Mental health - Psychiatric illness - Recommendation of involuntary admission by medical practitioner following meeting with family members - Failure to carry out out examination of applicant prior to recommendation - Applicant detained by respondent - Whether detention unlawful - MZ v Khattak [2008] IEHC 262, [2009] 1 IR 417 and Y(X) v Clinical Director of St Patrick's University Hospital [2012] IEHC 224 (Unrep, Hogan J, 8/6/2012) distinguished - RL v Clinical Director of St Brendan's Hospital [2008] IEHC 11, [2008] 3 IR 296 and EH v Clinical Director of St Vincent's Hospital [2009] IESC 46, [2009] 3 IR 774 considered - Mental Health Act 2001 (No 25), ss 1, 10, 12 and 14 - Release ordered (2013/495SS - Hogan J - 25/3/2013) [2013] IEHC 132

O(S) v Clinical Director of the Adelaide and Meath Hospital of Tallaght

Facts: The plaintiff was a person who suffered from psychiatric illness and who had been under the care of Dr C since June 2009. On the 8 ^th March 2013, Dr C met with the plaintiff”s mother and brother who explained how the plaintiff”s condition had deteriorated to the point that he was now sleeping with tinfoil wrapped around his head and with a hammer beside his bed. There were concerns for the safety of family members considering the paranoid and delusional mindset of the plaintiff. Dr C recommended an involuntary admission and the plaintiff was admitted on the 12 ^th March. No examination of the plaintiff was conducted before the recommendation as Dr C believed there was a possibility he may abscond if such a course of action was taken.

The plaintiff”s solicitors sought to challenge the legality of the admission on the basis that Dr C had not examined the plaintiff prior to his recommendation for an involuntary admission. It was stated that s. 10 and 14 of the Mental Health Act 2001 (‘the 2001 Act’) made it clear that no person could be involuntarily admitted for psychiatric care without a proper examination by a medical practitioner, with said examination having been conducted within the preceding 24 hours of the recommendation being made.

Held by Hogan J that it was clear that Dr C did not conduct any examination of the plaintiff within the 24 hours preceding his admission recommendation. The court could understand that such a course of action was done to alleviate the plaintiff and his family members of any unnecessary stress. Nevertheless, the failure to conduct an assessment meant that there was a breach of the 2001 Act, rendering the subsequent detention unlawful.

It was true that recent case law suggested that non-compliance with some sections of the 2001 Act would not render an admission order invalid. However, these concerned cases where examinations had been attempted but were defective as they did not strictly comply with s. 10 and 14 of the 2001 Act. Here, the fact there was no examination whatsoever meant no attempt had been made to adhere to the fundamental protections for the plaintiff under those sections. This was despite the fact that the admission order could be deemed to be valid given the plaintiff”s need for psychiatric care.

Plaintiff”s detention determined to be unlawful.

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S10(1)

MENTAL HEALTH ACT 2001 S1(1)

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S10(2)

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S12(4)

L (R) v CLINICAL DIRECTOR OF ST BRENDANS HOSPITAL & ORS 2008 3 IR 296 2008/34/7438 2008 IEHC 11

L (R) v CLINICAL DIRECTOR OF ST BRENDANS HOSPITAL & ORS UNREP SUPREME 15.2.2008 (EX TEMPORE)

H (E) v CLINICAL DIRECTOR OF ST VINCENTS HOSPITAL 2009 IR 774 2009 2 ILRM 149 2009/24/5948 2009 IESC 46

Z (M) v KHATTAK & TALLAGHT HOSPITAL BOARD 2009 1 IR 417 2008/61/12840 2008 IEHC 262

Y (X) v CLINICAL DIRECTOR OF ST PATRICKS UNIVERSITY HOSPITAL 2012 2 IR 355 2012/46/13972 2012 IEHC 224

MENTAL HEALTH ACT 2001 S12(3)

1 1. The case-law which has followed the enactment of the Mental Health Act 2001 ("the Act of 2001") has endeavoured to strike a balance between the need to protect rights to personal liberty, due process and the rule of law on the one hand and the effective protection of the mentally ill, medical professionals and the patients' family and friends on the other. It is not an easy balance to strike. If the courts veer in the direction of the paternalistic protection of the patient, important safeguards might suffer erosion over time to the point whereby the effective protection of the rule of law might be compromised. Yet, if on the other hand, the courts maintain an ultrazealous attitude to questions of legality and insist on punctilious adherence to every statutory formality, this might lead to the annulment of otherwise perfectly sound admission decisions, sometimes perhaps years after the original decision has been taken.

2 2. The present case may be thought to provide a paradigm example of this dilemma. There is no doubt at all but that the applicant, Mr. O., suffers from psychiatric illness and is in urgent need of psychiatric care. Yet the manner in which he came to be involuntarily detained in the early evening of 8 ^th March, 2013, raises significant questions regarding the operation of the 2001 Act.

3 3. Mr. O. has been a patient of Dr. C, a registered medical practitioner since June, 2009. During that time it is clear that he has required on-going psychiatric assessment and monitoring, for much of the time he has suffered obsessive delusions regarding the conduct of a former employer.

4 4. Matters came to a head, however, on the 8 ^th March, 2013. On that day Dr. C met with Mr. O's brother and mother at his surgery. They both recounted how Mr. O's behaviour had markedly deteriorated in recent days. He had begun to sleep with his head wrapped in tinfoil and lately kept a hammer beside his side or under the bed. Other family members feared for their safety and all expressed concern regarding the paranoid delusional thinking which was dominating Mr. O.'s chain of thought. Mr. O.'s brother then replayed to Dr. C. a tape recording of a conversation he had with him the previous day. This tape recording served to corroborate the fears which had already been expressed by these family members

5 5. In a very considered letter which Dr. C. sent to Mr. O.'s solicitors on 12 ^th March, 2013, at their request, he explained what had happened next:

"Based on all of the above and out of concern for the possibility that [Mr. O.] may potentially abscond should he see me and given my long standing and extensive knowledge of [Mr. O.'s] history, I proceeded to sign the Form 5 recommending [his] involuntary admission to an approved psychiatric unit."

6 6. Mr. O. was later removed to the respondent hospital later that day. He was received into the hospital just before 7pm and was examined on the following morning. The admission order describes his mental condition as:-

"Persecutory delusions. Aggressive and homicidal. In the context of same, no insight. Wishes to leave hospital."

7 7. No issue has been raised as such concerning his examination or subsequent treatment in hospital. What is instead at issue is whether the applicant's admission is lawful by reason of the fact that no actual examination was conducted by Dr. C. prior to the making of a recommendation for his admission.

8 8. The entire premise of s. 14 of the 2001 Act is that no person may be involuntarily detained in psychiatric hospital without a prior "recommendation" from a registered medical practitioner. Section 10(1) of the 2001 Act further...