W (EJ) (A person of unsound mind) v Watters and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 25 November 2008
• Neutral Citation: [2008] IEHC 462
• Docket Number: Record Number: No. 264 JR/2008
• Court: High Court
• Date: 25 November 2008

[2008] IEHC 462

THE HIGH COURT

Record Number: No. 264 JR/2008

W (EJ) v Clinical Director of St Senan's Psychiatric Hospital (Dr Watters) & Mental Health Commission

[2008] IEHC 462

Between:

EJW (a person of unsound mind)

Applicant

And

Dr. Liam Watters, Clinical Director of St. Senan's Psychiatric Hospital, and the Mental Health Commission

Respondents

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S15(1)

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S15(4)

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S17(1)

MENTAL HEALTH ACT 2001 S17(1)(B)

MENTAL HEALTH ACT 2001 S49(2)(E)

MENTAL HEALTH ACT 2001 S17(1)(C)(III)

MENTAL HEALTH ACT 2001 S17(4)

MEDICAL COUNCIL'S GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 2004 SE

MEDICAL COUNCIL'S GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 2004 PAR 16.1

MEDICAL COUNCIL'S GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 2004 PAR 16.3

MENTAL HEALTH ACT 2001 S18(1)

MENTAL HEALTH ACT 2001 S18(2)

MENTAL HEALTH ACT 2001 S49(6)(C)

MENTAL HEALTH ACT 2001 S4(1)

CROKE v SMITH NO2 1998 1 IR 101

LK v CLINICAL DIRECTOR OF LAKEVIEW UNIT 2007 2 IR 465

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART5

WARD v METROPOLITAN POLICE COMMISSIONER 2006 1 AC 23

WARD OF COURT (NO 2) IN RE 1996 2 IR 79

MENTAL HEALTH ACT 2001 S57

MENTAL HEALTH ACT 2001 S49(2)(E)

MENTAL HEALTH ACT 2001 PART II

MENTAL HEALTH ACT 2001 S9(6)

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S16

MENTAL HEALTH ACT 2001 S48

MENTAL HEALTH ACT 2001 S49(6)(F)

MENTAL HEALTH ACT 2001 S49(6)(G)

CONSTITUTION ART 40.4.2

MENTAL HEALTH

Legal representation

Involuntary patient - Review - Medical records - Incapacity of patient - Legal representative appointed - Failure of patient to consent to access to medical records - Whether legal representative entitled to view medical records in advance of hearing - Whether should wait to apply at hearing - Declaration that legal representative entitled to view records granted (2008/264JR - Peart J - 25/11/2008) [2008] IEHC 462

W(EJ) v Watters

Facts: The applicant was the subject of an involuntary admission order pursuant to the Mental Health Act 2001. The applicant sought a declaration that the refusal and failure to grant the applicant's assigned representative prior access to her medical records was in breach of constitutional and human rights. The Hospital contended that the Act failed to make specific provision for such disclosure and argued that the manner in which the Tribunal hearing the subject of the proceedings had disposed of the request for access to records had the effect of fully respecting and vindicating the rights of the applicant.

Held by Peart J. That the Court had to view the role of the legal representative as one being where they advised the patient and acted as their advocate. The role of the representative extended as necessary beyond the review hearing. This conclusion did not violence to the language of the Act. Affording prior access was such an obvious and necessary ingredient that it was not considered necessary to make specific provision for it. The Ethical Guidelines of the Medical Council did not have to be viewed in such a restrictive way. The Court had no difficulty in declaring that a patient who was subject to the Mental Health Act 2001 and did not have the medical capacity to give written consent, the medical records and files of the patient could be disclosed to the legal representative in so far as this was necessary to protect the interests of the patient. In certain instances, the decision to give access might be more appropriately be the subject the decision of the Tribunal.

Reporter: E.F.

Judgment of

Mr Justice Michael Peart

1 The applicant, aged 70 years, and is detained at the first named respondent's hospital ("the hospital") following the making of an involuntary admission order on the 22^nd February 2008 under Section 14 of the Mental Health Act, 2001("the Act").

2 Section 15 (1) of the Act provides that such an order shall remain in force for a period of 21 days thereafter, subject to any renewal of that order under the provisions of s. 15 (2), (3) and (4) of the Act.

3 Upon the making of the admission order, the applicant is entitled to have a review of that order conducted by a Mental Health Tribunal under s. 18 of the Act, and the decision of that Tribunal is required to be made as soon as possible, but not later than 21 days from the date of its making.

4 Section 17(1) of the Act sets out certain procedures to be observed by the Mental Health Commission once it has been notified of the making of the admission order. That section provides:

"17.-(1) Following the receipt by the Commission of a copy of an admission order or a renewal order, the Commission shall, as soon as possible -"

(a) refer the matter to a tribunal,

(b) assign a legal representative to represent the patient concerned unless he or she proposes to engage one,

(c) direct in writing (referred to in this section as 'a direction') a member of the panel of consultant psychiatrists established under section 33(3)(b) to-

(i) examine the patient concerned,

(ii) interview the consultant psychiatrist responsible for the care and treatment of the patient, and

(iii) review the records relating to the patient,

5 in order to determine in the interests of the patient whether the patient is suffering from a mental disorder and to report in writing within 14 days on the results of the examination, interview and review to the tribunal to which the matter has been referred and to provide a copy of the report to the legal representative of the patient." (my emphasis)

6 It is the requirement at s. 17(1)(b) above which is at the heart of the issue arising for determination in these proceedings.

7 By letter dated 26^th February 2008, the Mental Health Commission informed Finbarr Phelan, solicitor, that he had been appointed as the patient's legal representative, and on the 27^th February 2008 Mr Phelan accepted that appointment.

8 On the 3^rd March 2008, Mr Phelan wrote to the respondent stating that on that same day he had attended at the hospital in order to interview the applicant and review her medical records, but that due to her incapacity she "refused to and/or did not have the capacity to give him her written consent to allow me to access her records". In his grounding affidavit at paragraph 10 thereof, Mr Phelan states that it is the practice of this and other hospitals to allow access to such records by the legal representative "only where that patient consents", and that this practice is "regardless of the patient's mental capacity to consent or not". The present applicant refused such consent, but Mr Phelan has averred in his said affidavit that the applicant is not mentally competent to grant or refuse that consent to access her medical records, and further that she is not competent to generally instruct him as her assigned legal representative for the purposes of the review hearing before the tribunal. For the purpose of this present application there is no dispute between the parties regarding the applicant's mental incapacity, and certainly it is not being contended by any party that the applicant had the mental capacity to make an informed decision to refuse consent, or indeed to give consent. It appears, sadly, that the applicant suffers from early-onset Alzheimers Disease.

9 Mr Phelan wrote to the respondent seeking its written permission to access the applicant's records in the light of her incapacity to give her consent, pointing out that as her legal representative he was required to inspect those records ahead of the review hearing before the Tribunal, and stating also that it was not practical for him to later seek the permission of the Tribunal, when it sat, to examine these records, thereby necessitating an adjournment of the hearing.

10 He received an e-mail response from the respondent dated 6^th March 2008 which, inter alia, stated:

"… Please note that none of the employees here in the hospital do not [sic] have any authority in law to give anyone access to patients notes without written consent from the patient. Therefore, you will have to wait until the Tribunal sits to get access to the notes with their approval. If you do not have time to review the notes you can ask the Tribunal Chairperson to defer the tribunal to a later date…"

11 The power of the Tribunal to grant such access in the absence of the patient's written consent is not specifically contained within the Act, but perhaps could derive from the general power contained in s. 49(2)(e) of the Act which provides:

"(2) (e) give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just".

12 It appears that in a circular dated 13^th December 2006 from the Mental Health Commission to all solicitors on the panel of legal representatives for such reviews, the Commission stated, inter alia:

"… If the patient refuses to consent or does not have the capacity to consent, access to files by the legal representative will have to await authorisation from the Mental Health Tribunal ……… Approved centres can only release records with the patient's consent … The Commission has no power to direct approved centres to provide copies of their files to legal representatives and the Commission's schedule of fees does not reimburse legal representatives or approved centres for costs associated with the copying of these files."

13 Having referred to this circular and to the reply which he received by e-mail on the 6^th March 2008, Mr Phelan goes on to say in his affidavit that it is not desirable that a legal...