T. O'D. v Harry Kennedy, Clinical Director of the Central Director of the Central Mental Hospital, and the Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Peter Charleton
• Judgment Date: 25 April 2007
• Neutral Citation: [2007] IEHC 129
• Docket Number: [2007 No. 408 SS]
• Court: High Court
• Date: 25 April 2007

[2007] IEHC 129

THE HIGH COURT

[No. 408 S.S./2007]

O'D v KENNEDY (CLINICAL DIRECTOR OF CENTRAL MENTAL HOPSITAL) & HEALTH SERVICE EXECUTIVE (HSE)

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF

THE CONSTITUTION OF IRELAND

BETWEEN

T. O'D.

APPLICANT

AND

HARRY KENNEDY, CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL, AND THE HEALTH SERVICE EXECUTIVE

RESPONDENTS

AND

THE MENTAL HEALTH COMMISSION

NOTICE PARTY

CONSTITUTION ART 40.4.2

WHELAN, STATE v GOVERNOR OF MOUNTJOY PRISON 1983 3 ILRM 52

MENTAL HEALTH ACT 2001

MENTAL TREATMENT ACT 1945 S185

MENTAL TREATMENT ACT 1945 S208

MENTAL TREATMENT ACT 1945 S184

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S23(1)

MENTAL HEALTH ACT 2001 S24(2)

MENTAL HEALTH ACT 2001 S18(1)(a)(ii)

MENTAL HEALTH ACT 2001 (COMMENCEMENT) ORDER 2006 SI 411/2006

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S4

M (R) v BYRNE UNREP O'NEILL 2.3.2007 2007 IEHC 73

MENTAL HEALTH ACT 2001 S32

MENTAL HEALTH ACT 2001 S18(4)

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S15(4)

MENTAL HEALTH ACT 2001 S49(2)

CLARKE, IN RE 1950 IR 235

MENTAL TREATMENT ACT 1945 S165

MENTAL TREATMENT ACT 1945 PART VIII

MENTAL TREATMENT ACT 1945 S241

MENTAL TREATMENT ACT 1945 S276

MENTAL TREATMENT ACT 1945 S283

MENTAL TREATMENT ACT 1945 4

MENTAL TREATMENT ACT 1953

MENTAL TREATMENT (DETENTION IN APPROVED INSTITUTIONS) ACT 1961

MENTAL TREATMENT ACT 1961

MENTAL TREATMENT ACT 1961 S39

MENTAL TREATMENT ACT 1961 S40

GOODEN v ST OTTERAN'S HOSPITAL 2005 3 IR 617

MENTAL HEALTH ACT 2001 S18(1)

MENTAL HEALTH ACT 2001 S24(3)

MENTAL HEALTH ACT 2001 S48

MENTAL HEALTH ACT 2001 S49

MENTAL HEALTH ACT 2001 S19

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S16

MENTAL HEALTH ACT 2001 S4(2)

MENTAL HEALTH ACT 2001 S4(3)

Abstract:

Mental health - Detention in Central Mental Hospital - Whether applicant unlawfully detained - Purposive interpretation of legislation - Mental Health Tribunal - Mental Health Act 2001

The applicant claimed that he was unlawfully in detention in the Central Mental Hospital pursuant to orders of detention made under the Mental Health Act 2001.

Held by Charleton J. in dismissing the application that there had been periods of unlawful detention of the applicant in the past but these were not caused by malice but by mistake. These had now been rectified by order of the Mental Health Tribunal under s. 18 of the Mental Health Act 2001. The applicant clearly had a mental disorder. He had never been subjected to reckless or inhumane treatment as to his detention and any further review should take place within the statutory scheme under the Act. That was what the Oireachtas intended.

Reporter: R.W.

1 1. On the 2nd April, 2007, this matter first appeared before the High Court as an application for an inquiry into the lawfulness of the detention of the applicant under Article 40.4.2 of Bunreacht na hÉireann. The matter was made returnable for 14.00 hours on the next day. On hearing the parties, it was impossible to dispose of the case then. When a listing was suggested later in the week, or early in the following week, it emerged that important personnel who needed to swear affidavits in relation to this difficult case were unavailable. The matter was therefore heard on the 17th April. The issues involved being complex matters of importance as to the proper interpretation of the powers of detention contained in the Mental Health Act, 2001, the case therefore put in for judgment for today.

2 2. The time taken to dispose of this application is at the limit of the stricture set out in Article 40.4.2 which requires a judge to whom a complaint is made that a person is being unlawfully detained to "forthwith inquire into the said complaint". The complexity of the facts and law bearing on the contention of unlawful detention have to be borne in mind in the disposal of this matter. It is important to take time but, in this regard, the minimum amount of time necessary to fairly dispose of such issues. In The State (Whelan) v. Governor of Mountjoy Prison [1983] I.L.R.M. 52 at 55 it was pointed out that although the adverb "forthwith" in Article 40.4.2 qualified the manner in which the decision to order an enquiry was to be conducted; it did not govern the time in which the inquiry itself was to be undertaken or within which judgment should be delivered. However, the urgency and importance of proceedings of this kind must be kept in mind by a court, which is entitled to conduct the hearing in a manner which it thinks is best calculated to resolve the issues of law and fact and to achieve justice between the parties.

3 3. The applicant claims that he is unlawfully in detention in the Central Mental Hospital pursuant to orders of detention made under The Mental Health Act, 2001. Insofar as it is argued that the Mental Health Tribunal, set up under the Mental Health Commission first established under that Act, have ruled that his detention is lawful, it is asserted in these proceedings that his ruling was beyond the powers of the Tribunal under the Act.

Facts

4 4. The applicant is very ill. In stating that as a fact in the present, it certainly does not mean that the applicant may not recover. The letter written by the applicant to the court, and his comments on the replying affidavit of Dr. Damien Mohan in these proceedings indicate a lively and intelligent mind. Unfortunately, the problems which the applicant currently faces are very serious. He has expressed sexual ideation concerning paedophilia; he has delusions of being persecuted; he has attempted to strangle his former girlfriend; he has jumped from a height to escape from a mental hospital; he has assaulted staff members at various psychiatric hospitals, threatening to kill them; and he has a history of serious substance abuse of alcohol, drugs and veterinary anaesthetic.

5 5. The applicant was first admitted to St. James's Hospital in 1997 after an attempt to strangle his girlfriend, in consequence of a belief that she was being unfaithful. There were further admissions to the same hospital in November, 1997 and June of 1998. A diagnosis of paranoid schizophrenia was made. Further admissions to that hospital occurred in September of 1999 and April of 2001. Out-patient treatment continued between admissions. As a result of an incident in April, 2001 he was transferred from St. James's Hospital to the Central Mental Hospital and remained there for the next seventeen months. Further incidents of assault occurred during that time. Under s. 185 of the Mental Treatment Act, 1945 the applicant was admitted to St. James's Hospital on the 13th June, 2003, and then, pursuant to s.208 of that Act, transferred to the Central Mental Hospital. This certification under s.184 was further endorsed on 11th December, 2003. On 13th June, 2003, the applicant had been transferred to St. Brendan's Hospital from St. James's Hospital but on the 13th May, 2004, he was transferred to the Central Mental Hospital. The Applicant was admitted to the psychiatric unit of St. James's Hospital on 7th June, 2005, under s.184 of the Mental Treatment Act, 1945 and then transferred to the Central Mental Hospital. This certification under s.184 was endorsed on 7th December, 2005, and further endorsed on 6th June, 2006, for a six month periods. During the next five months the situation of the applicant was diagnosed in the manner which is set out in the replying affidavit of Dr. Damien Mohan, consultant psychiatrist as follows:-

"The Applicant continued to express a chronic systemised delusional system. I say that he continued to believe that people were trying to kill him and that there was a conspiracy against him. I say that he also continued to express chronic delusions that... I say that he made considerable progress in terms of rehabilitation work and attendance at various courses. I say that he also participated in accompanied parole and had completed a relapse prevention programme. He continued to engage in individual psychological work and occupational therapy".

6 6. The problems in relation to the legal aspect of the detention of the applicant apparently began on 11th December, 2006 when at 15.15 hours Dr. Mohan, who was the applicant's treating psychiatrist, was informed that the renewal order in respect of his detention under s.184 of the Mental Treatment Act, 1945 had not been extended, as it should have been on 7th December, 2006. On consulting the Mental Health Commission, they advised Dr. Mohan to tell the applicant that he was in hospital as a voluntary patient. When Dr. Mohan spoke to the applicant and informed him that he was a voluntary patient, the applicant accepted that he remained mentally unwell and admitted harbouring ideas of harm towards children. Issues as to a possible transfer to a hostel for psychiatric patients in the community were discussed between the applicant and Dr. Mohan. Dr. Mohan explained to him that s. 23 of the Mental Health Act, 2001 would enable him to certify the applicant so as to detain him in hospital for 24 hours. The procedure whereby another consultant psychiatrist would then review him was also explained. The applicant expressed the view that one part of him wanted to go to St. James's Hospital and another part wanted to stay in the Central Mental Hospital in order to finish his course of treatment. On 11th December, 2006, the applicant agreed to remain on in the Central Mental Hospital as a voluntary patient. On 13th December, 2006, the mental condition of the applicant had, regrettably, deteriorated and it appeared, on the evidence before me, that he did not have the requisite capacity to give...