S. -v- H. S. E. & Ors,  IEHC 106 (2009)
|Docket Number:||2008 1632 SS|
|Party Name:||S., H. S. E. & Ors|
THE HIGH COURT2008 1632 SS
IN THE MATTER OF AN INQUIRY PURSUANT TO
ARTICLE 40.4.2˚ OF BUNREACHT NA h╔IREANN
V. T. S.APPLICANTAND
THE HEALTH SERVICE EXECUTIVE
THE MERCY UNIVERSITY HOSPITAL LIMITED
AND BY ORDER
IRELAND AND THE ATTORNEY GENERALRESPONDENTSJUDGMENT of Mr. Justice John Edwards delivered on 11 February 2009
On 28th October, 2008, this court was asked by the applicant to open an inquiry pursuant to Article 40.4.2˚ of the Constitution of Ireland into the legality of the detention of the applicant's daughter, a 33 year old South African national, at the Mercy University Hospital in the City of Cork. The applicant's daughter is Ms. N.I. and will hereinafter be referred to as ôthe patientö. The patient is alleged to be detained unlawfully at the Mercy University Hospital, an institution operated by the second named respondent, in purported pursuance of an order made by a servant or agent of the first named respondent pursuant to s. 38 of the Health Act, 1947 as amended by s. 35 of the Health Act, 1953 which provides for the detention and isolation of a person suffering from an infectious disease who is a probable source of infection. The applicant claims that the patient's detention is unlawful and she seeks an order for the patient's release. The order in question was made on 11th December, 2007 and was made by the Medical Officer of Health for the Health Service Executive South, on the basis that the patient is a probable source of infection with an infectious disease, to wit tuberculosis (TB), and that her isolation is necessary as a safeguard against the spread of infection and that she cannot be effectively isolated in her home. The order specified that the patient be detained and isolated in a specialised negatively pressurized room within the Mercy University Hospital until certified by the said Medical Officer of Health that she is no longer a probable source of infection. The Court, having received evidence on affidavit concerning the patient's alleged detention, was satisfied to open an inquiry into the lawfulness of that detention pursuant to Article 40.4.2˚ of the Constitution.
The applicant claims, first, that the patient's detention is unlawful, and secondly, that if her detention is in fact lawful then the law authorising it, namely section 38 of the Health Act, 1947, is unconstitutional.
By Order of this Court dated the 28th October, 2008, the first and second respondents were directed to certify in writing the grounds of the patient's detention. The Court further ordered that Ireland and the Attorney General be joined to the proceedings as third and fourth named respondents respectively, having regard to the constitutional issue that has been raised. Since then, the first and second named respondents have duly certified in writing the grounds of the patient's detention and have sought, by the adduction of relevant evidence, to justify it as being in accordance with law. This applicant has contested this and has adduced evidence of her own in support of her contention that the patient is not lawfully detained. The Attorney General has argued the constitutional validity of the impugned section, and the applicant has argued its invalidity. The hearing lasted five days. The Court, mindful of the need for expedition in a matter involving the right to personal liberty, ruled on the 26th of November 2008 that the patient's detention was lawful, and in respect of the impugned section, which enjoys a presumption of constitutionality, that no case tending to rebut that presumption had been made out such as might justify it in stating a case for the opinion of the Supreme Court. I gave brief reasons for my decision ex-tempore and indicated that I would give more detailed reasons in a reserved judgment to be delivered later. I will now do so.
Moreover, it should be stated that I have, of my own motion, decided that it is appropriate to bring the very particular and unusual circumstances of the patient's case to the attention of the President of the High Court so that he might consider it the context of the wardship jurisdiction that is reserved to him. Accordingly, my judgment incorporates a much more detailed review of the evidence heard in the course of the inquiry than would otherwise be necessary.
The relevant statutory provisions
It may be helpful to an understanding of the issues in the case if I outline at this stage the relevant statutory provisions. They are as follows:-
(a) The principal statute with which we are concerned is the Health Act, 1947. Section 38 of the Health Act, 1947 in its original and unamended form stated:-
(1) Where a chief medical officer is of opinion, either consequent on his own inspection of a person in the area for which such medical officer acts or consequent upon information furnished to him by a registered medical practitioner who has inspected such person, that such person is a probable source of infection with an infectious disease and that his isolation is necessary as a safeguard against the spread the infection, and that such person cannot be effectively isolated in his home, such medical officer may order in writing the detention and isolation of such person in a specified hospital or other place until such medical officer gives a certificate (for which no charge shall be made) that such person is no longer a probable source of infection.
(2) Where an order is made under this section in relation to a person (in this subsection referred to as the patient), the following provisions shall have effect:-(a) the medical officer who made the order in this subsection referred to as the committing officer) shall forthwith send a copy of the order to the Minister and to the Health Authority for which he acts,
(b) the committing officer, and also any other person, to whom the duty of acting under this section has been assigned by or with the consent of the Minister and who has been authorised in writing by the committing officer to act in the particular case, may detain the patient,
(c) the person detaining the patient shall, on or before doing so -
(i) produce for inspection by the appropriate person his written authorisation from the committing officer, if he is not himself the committing officer, and
(ii) give to the appropriate person a copy of the order and a statement in writing of the right of appeal under paragraph (h) of this subsection,
(d) if the patient, when detained, is outside the area for which the committing officer acts, the committing officer, may, with the consent of the chief medical officer of the area in which the person is detained, amend the order to allow for the patient's isolation in a hospital or other place convenient to the place where he is detained, and the order as so amended shall have effect accordingly,
(e) where the committing officer amends the order, he shall forthwith send a copy of the order as amended to the Minister and to the health authority for which he acts and to the health authority of the area in which the patient is detained and to the appropriate person,
(f) after the patient is detained, he shall be taken to the hospital or other place specified in the order and shall, subject to the provisions of this subsection, be there detained and isolated until the committing officer certifies that he is no longer a probable source of infection,
(g) the person in charge of such hospital or other place shall afford to the committing officer all reasonable facilities for visiting such hospital or other place and examining the patient therein,
(h) the patient (of the parent of the patient, where the patient is a child) may at any time appeal to the Minister in writing to direct the release of the patient.
(i) the person in charge of such hospital or other place shall afford all reasonable facilities for the purposes of any appeal under paragraph (h) of this subsection, including where appropriate facilities for the inspection of any reports and records relating to the patient and available in such hospital or other place and the provision of copies of any such reports or records,
(j) on receipt of an appeal under paragraph (h) of this subsection, the Minister shall give notice in writing of the date on which such appeal was received by him to the person making the appeal and to the person in charge of such hospital or other place,
(k) if no determination of an appeal under paragraph (h) is made by the Minister and communicated to the person in charge of such hospital or other place within twenty one clear days from the receipt by the Minister of such appeal, such person shall release the patient and notify the committing officer of such release and if necessary arrange for conveyance of the patient to his usual place of residence,
(l) if at any time the Minister directs the release of the patient, he shall be released by the person in charge of such hospital or other place in accordance with the direction and such person shall, if necessary, arrange for his conveyance to his usual place of residence
(m) where an appeal is made under paragraph (h) of this subsection the Minister shall cause one of medical officers to examine the patient and report the result of such examination,
(i) as soon as practicable after the appeal is received by the Minister, and
(ii) at intervals thereafter not exceeding six weeks during the detention,
(n) the person in charge of such hospital or other place shall provide all reasonable facilities for an examination under paragraph (m) of this subsection,
(o) force may, if necessary, be used for the purpose of carrying out any provision of this subsection.(3) In this section the expression "the appropriate person" means in relation to a patient -
(a) where the patient appears to be under sixteen years of age and his parent can be ascertained and reached within a time which is reasonable having regard to all the circumstances of the case - his parent,
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