W.Q. v Mental Health Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill
• Judgment Date: 15 May 2007
• Neutral Citation: [2007] IEHC 154
• Court: High Court
• Docket Number: [2007 No. 497SS]
• Date: 15 May 2007

Q (W) v Mental Health Commission & Ors

IN THE MATTER OF THE APPLICATION FOR AN INQUIRY

PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND

BETWEEN

W.Q.

APPLICANT

AND

THE MENTAL HEALTH COMMISSION, THE DIRECTOR OF THE CENTRAL MENTAL HOSPITAL, THE MENTAL HEALTH TRIBUNAL AND DR. DAMIAN MOHAN

RESPONDENTS

[2007] IEHC 154

[No. 497 SS/2007]

THE HIGH COURT

CONSTITUTION ART 40.4

MENTAL HEALTH ACT 2001 S15

MENTAL TREATMENT ACT 1945 S207

MENTAL TREATMENT ACT 1945 S184

MENTAL HEALTH ACT 2001 S17(1)(b)

MENTAL HEALTH ACT 2001 S17

MENTAL HEALTH ACT 2001 S72(4)

T (R) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL 1995 2 IR 65 1995 2 ILRM 354 1995/5/1664

MENTAL TREATMENT ACT 1945 S184(4)

MENTAL HEALTH ACT 2001 S72

H (J) v RUSSELL (CLINICAL DIRECTOR OF CAVAN GENERAL HOSPITAL) UNREP CLARKE 6.2.2007 2007 IEHC 7

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S18

BYRNE, STATE v FRAWLEY 1978 IR 326

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S16

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

MENTAL HEALTH ACT 2001 S17(1)(a)

MENTAL HEALTH ACT 2001 S18(2)

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88 2006/1/19 2006 IESC 45

1 JUDGMENT of Mr. Justice O'Neilldelivered on the 15th day of May, 2007

2 The applicant has for many years suffered from serious mental illness. At present he is detained in the Central Mental Hospital on foot of an order made pursuant to s. 15 of the Mental Health Act, 2001. On the 20th April, 2007 an application was made on behalf of the applicant pursuant to Article 40.4 of the Constitution of Ireland for an inquiry into the legality of the applicant's detention. I directed that such an inquiry take place on the 24th April, 2007 and ordered the second named respondent certify in writing the grounds upon which the applicant was detained. By a certificate made by the second named respondent dated the 24th April, 2007 it was certified that the applicant was detained by the second named respondent as Clinical Director of the Central Mental Hospital pursuant to s. 15 of the Mental Health Act, 2001 on foot of a renewal order for his detention made on the 28th March, 2007 which said order was affirmed by a decision of the Mental Health Tribunal dated the 16th April, 2007.

3 The applicant by order of the Minister for Health made on the 19th September, 1986 pursuant to s. 207 of the Mental Treatment Act, 1945 was transferred to the Central Mental Hospital from St. Brendan's Hospital in Dublin. The applicant was detained at the Central Mental Hospital pursuant to this order until the 3rd July, 2006. The applicant was in or about 2003 referred to the Tipperary Mental Health Services by Dr. Damian Mohan because he was from the catchment area for South Tipperary Mental Health Services. Because the applicant had been in detention in the Central Mental Hospital since 1986 he was not under the care of a Consultant Psychiatrist outside of the Central Mental Hospital and this was the reason for his referral. A Dr. Miriam Cussan, a Psychiatrist was invited to attend a case conference at the Central Mental Hospital in relation to the applicant in November, 2003. Thereafter Dr. Zubaidah O'Leary a Consultant Psychiatrist from the South Tipperary Mental Health Services was requested to attend at the Central Mental Hospital to review the applicant on the 3rd May, 2006. Dr. O'Leary examined the applicant there and reached a conclusion that he was suffering from very serious mental illness. Her conclusion included a finding that the applicant lacked the ability to sustain his treatment outside the supervised environment of the Central Mental Hospital and that he would be at risk of non compliance with medication leading to a significance relapse of his mental illness increasing his risk to himself and to others were he to move to a less secure environment.

4 After this examination the applicant was discharged from the Central Mental Hospital and transferred to St. Luke's Hospital in Clonmel, Co. Tipperary on the 3rd July, 2006, under the provisions of s. 184 of the Mental Treatment Act, 1945. Dr. O'Leary remained of the same opinion as she formed on the 3rd May, 2006.

5 Because the applicant continued to require specialist treatment at the Central Mental Hospital Dr. O'Leary completed a transfer form under s. 208 of the Mental Treatment Act, 1945, and on foot of this, the applicant was transferred back to the Central Mental Hospital on the 5th July, 2006.

6 On the 1st November, 2006 the Mental Health Act, 2001 came into force, and the applicant's continued detention thereafter fell to be regulated under the relevant provisions of this Act.

7 Thereupon the applicant's detention was notified by the second named respondent to the Mental Health Commission on the 1st November, 2006.

8 The detention of the applicant pursuant to s. 184 of the Mental Treatment Act, 1945 was for a period of six months which was due to expire on the 2nd January, 2007. On that date Dr. O'Leary attended at the Central Mental Hospital for the purpose of reviewing the applicant in order to consider whether his continued detention was warranted. The applicant was examined by Dr. O'Leary and her conclusion was that the applicant's condition was essentially unchanged, and if in a less secure environment, non compliance with his medication was likely to result in a serious psychotic relapse which would result in the applicant being at serious risk to others in view of his history. Accordingly Dr. O'Leary completed form 7 of the Mental Health Commission's forms in accordance with s. 15 of the Mental Health Act, 2001 renewing the detention of the applicant for a period of 3 months from that date. This renewal order was notified to the Mental Health Commission who pursuant to the provisions of the Mental Health Act, 2001 appointed Dr. Malcolm Garland an independent Consultant Psychiatrist to examine and report upon the applicant. The Mental Health Commission also convened a Mental Health Tribunal in respect of the applicant's detention on the 22nd January, 2007. This Tribunal concluded that the applicant was continuing to suffer from a mental disorder and it affirmed the renewal order made by Dr. O'Leary on the 2nd January, 2007. At the hearing of this tribunal the applicant was represented by a legal representative assigned by the Mental Health Commission, as required by s. 17(1)(b) of the Mental Health Act, 2001.

9 Coming towards the end of the period of three months detention, on the 28th March, 2007 the applicant's detention was further renewed by Dr. Damian Mohan, pursuant to s. 15 of the Mental Health Act, 2001, for a period of six months. The applicant was again examined by Dr. Malcolm Garland an independent Consultant Psychiatrist on the 12th April, 2007 as required by the Mental Treatment Act, 2001. The Mental Health Commission convened a Mental Health Tribunal pursuant to s. 17 of the Act, 2001 for the 16th April, 2007. At the hearing before this tribunal on that date, the applicant was again represented by Ms. Bernadette Parte, Solicitor appointed pursuant to s. 17(1)(b) by the Mental Health Commission to represent the applicant. In the course of this hearing, Ms. Parte made a submission to the tribunal that the applicant's detention was unlawful because no tribunal had been convened to review the applicant's detention prior to the making of the renewal order of the 3rd January, 2007, which failure she submitted was a breach of the applicant's legal entitlements pursuant to s. 72(4) of the Act of 2001, and as a consequence of which, subsequent renewal orders were invalid rendering the applicant's detention unlawful. The tribunal rejected this submission on that the ground that at the previous Mental Health Tribunal hearing on the 22nd January, 2007 no challenge of this kind was made to the lawfulness of the applicant's detention and that any defect in the order which may have existed was remedied by the subsequent affirmation of that order by the Mental Health Tribunal on the 22nd January, 2007. This tribunal on the 16th April, 2007 was satisfied that the applicant was suffering from a mental disorder and that there was compliance with the relevant provisions of the Act of 2001 and accordingly affirmed the renewal order made on the 28th March, 2007, which is as certified by the second respondent the legal basis of the applicant's detention, now challenged by the applicant in these proceedings.

10 The statutory provisions relevant to this applicant are as follows:-

MENTAL TREATMENT ACT, 1945

11 2 "184-(1) Where it is desired to have a person received and detained as a temporary patient and as a chargeable patient in an approved institution maintained by the Mental Hospital Authority for the Mental Hospital District in which such person ordinarily resides or an approved institution in which temporary patients of such authority may in pursuance of an arrangement made under s. 102 of this Act be received, application may be made in the prescribed form to the person in charge of such an institution for an order (in this Act referred to as a Temporary Chargeable Patient Reception Order) to have such a person received and detained as a temporary patient and as a chargeable patient in such institution...

12 (4) An application under this section shall be accompanied by a certificate in the prescribed form of the authorised Medical Officer certifying that he has examined the person to whom the applicant relates on a specified date not earlier than seven days before the date of the application and is of opinion either -

13 (a) That such person -

14 (i) is suffering from mental illness, and

15 (ii) requires, for his recovery, not more than six months suitable...