S (v T) v Health Service Executive & Mercy University Hospital Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 11 February 2009
• Neutral Citation: [2009] IEHC 106
• Court: High Court
• Date: 11 February 2009

S (V T) v Health Service Executive & Mercy University Hospital Ltd

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2° OF BUNREACHT NA hÉIREANN

BETWEEN

V.T.S.

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

AND

THE MERCY UNIVERSITY HOSPITAL LIMITED

AND BY ORDER

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2009] IEHC 106

[No. 1632 SS/2008]

THE HIGH COURT

CONSTITUTIONAL LAW

Detention

Infectious disease - Legal basis for detention - Relevant statutory provisions - Whether section properly invoked - Constitutional validity of section authorising detention - Presumption of constitutionality - Constitutional rights - Terms of reference of inquiry - Public policy - Whether detention authorised on ongoing basis - Burden of proof - Natural and constitutional justice - Existence of safeguards - Paternal character of legislation - Whether adequate level of protection for personal rights of detainees - Existence of readily accessible remedy if section not operated constitutionally - Application of Gallagher (No 2) [1996] 3 IR 10, State (Nicolaou) v Attorney General [1966] IR 567, State (McFadden) v Governor of Mountjoy Prison (No 1) [1981] ILRM 113, In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, People v Shaw [1982] IR 1, East Donegal Cooperative Livestock Market Limited v Attorney General [1970] IR 317, RT v Director Central Mental Hospital [1995] 2 IR 65, JH v Russell [2007] IEHC 7, [2007] 4 IR 242, T O'D v Kennedy [2007] IEHC 129, [2007] 3 IR 689, Croke v Smith (No 2) [1998] 1 IR 101, Gooden v St Otteran's Hospital (2001) [2005] 3 IR 617, JB v Mental Health (Criminal Law) Review Board [2007] IEHC 147, (Unrep, Hanna J, 25/7/2008), Re Philip Clarke [1950] IR 235, Osheku v Ireland [1986] IR 733, Laurentiu v Minister for Justice [1999] 4 IR 42, Minister for Justice v Butenas [2008] IESC 9, [2008] 4 IR 189, DP v Governor of the Training Unit [2001] IR 493 and State (O) v Daly [1977] IR 312 considered - Constitution of Ireland 1937, Articles 40.1, 40.3, 40.4.2 and 40.4.3 - Health Act, 1947 (No 28), ss 2, 29 and 38 - Health Act 1953 (No 26), s 35 - Infectious Diseases Regulations 1981 (SI 390/1981) - Infectious Diseases (Amendment) (No 3) Regulations 2003 (SI 707/2003) - European Convention on Human Rights, arts 5 and 8 - Claim of constitutional invalidity dismissed, detention declared lawful (2008/1632SS - Edwards J - 11/2/2009) [2009] IEHC 106

S (VT) v Health Service Executive

CONSTITUTION ART 40.4.2

HEALTH ACT 1947 S38

HEALTH ACT 1953 S35

HEALTH ACT 2004 SCHED 5

HEALTH ACT 1947 S29

HEALTH ACT 1947 S2

HEALTH ACT 1947 S29(1)

INFECTIOUS DISEASES (AMDT) (NO 3) REGS 2003 SI 707/2003 REG 4(4)

CHILD CARE ACT 1991 S3(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

HEALTH ACT 1947 S38(2)(B)

CONSTITUTION ART 40.4

CONSTITUTION ART 40.4.3

HEALTH ACT 2004 SCHED 5 PARA 4(2)

HEALTH ACT 1947 S38(1)

HEALTH ACT 1947 S38(2)(C)(i)

HEALTH ACT 1947 S38(3)

HEALTH ACT 1947 S38(2)(C)(ii)

HEALTH ACT 1947 S38(2)(H)

HEALTH ACT 1947 S38(3)(C)

GALLAGHER v DIRECTOR OF CENTRAL MENTAL HOSPITAL (NO 2) 1996 3 IR 10 1996/11/3393

TRIAL OF LUNATICS ACT 1883 S2 (UK)

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

MCFADDEN, STATE v GOV OF MOUNTJOY PRISON (NO 1) 1981 ILRM 113 1980/16/2741

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

DPP v SHAW 1982 IR 1

CONSTITUTION ART 40.1

INFECTIOUS DISEASES REGS 1981 SI 390/1981 REG 8

HEALTH ACT 1947 S38(2)(O)

HEALTH ACT 1947 S38(4)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

T (R) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL 1995 2 IR 651995 2 ILRM 354 1995/5/1664

MENTAL TREATMENT ACT 1945 S207

H (J) v RUSSELL (CLINICAL DIRECTOR OF CAVAN GENERAL HOSPITAL) 2007 4 IR 242 2007/27/5562 2007 IEHC 7

O'D (T) v KENNEDY & ORS 2007 3 IR 689 2007/48/10228 2007 IEHC 129

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 S18(1)

CROKE v SMITH & ORS (NO 2) 1998 1 IR 101 1996/9/2829

MENTAL TREATMENT ACT 1945 S172

GOODEN v WATERFORD REGIONAL HOSPITAL & ST OTTERANS HOSPITAL 2005 3 IR 617 2001/11/2896

B (J) v MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD & ORS UNREP HANNA 25.7.2008 2008 IEHC 303

CRIMINAL LAW (INSANITY) ACT 2006 S13(8)

HEALTH ACT 1947 S38(7)

CLARKE, IN RE 1950 IR 235

OSHEKU v IRELAND, AG & MIN FOR JUSTICE 1986 IR 7331987 ILRM 330 1986/7/1474

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 422000 1 ILRM 1 1999/15/4481

BUTENAS v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 12.3.2008 2008 IESC 9

P (D) v GOVERNOR OF TRAINING UNIT & MIN FOR JUSTICE 2001 1 IR 492

O, STATE v DALY 1977 IR 312

HEALTH ACT 1947 S38(2)

1 JUDGMENT of Mr. Justice John Edwards delivered on 11 February 2009

Introduction

2 On 28 ^th 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 "the patient". 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 11 ^th 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.

3 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.

4 By Order of this Court dated the 28 ^th 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 26 ^th 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 extempore and indicated that I would give more detailed reasons in a reserved judgment to be delivered later. I will now do so.

5 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 judgement 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

6 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:-

7 (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:-

8 (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...