YZ v Clinical Director of the Department of Psychiatry XY Hospital and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 27 February 2024
• Neutral Citation: [2024] IEHC 169
• Docket Number: RECORD No. HSS 252/2024

In the Matter of An Enquiry Pursuant to Article 40.4 of Bunreacht Na hÉireann

Between/

Y. Z (also known as N.Z)

Applicant

and

The Clinical Director of the Department of Psychiatry XY Hospital [Location Redacted] and Health Service Executive

Respondents

[2024] IEHC 169

RECORD No. HSS 252/2024

THE HIGH COURT

EX TEMPORE JUDGMENT of Ms. Justice Nuala Jackson delivered on the 27 ^th February 2024 .

1 By Order of this Court (Hyland J.) of the 22 ^nd February 2024, an inquiry was directed in accordance with Article 40.4 of Bunreacht na hÉireann into the grounds of the detention of the Applicant and it was furthermore ordered that the Respondents certify the grounds of such detention in writing. An Order was also made on that date pursuant to section 27(1) of the Civil Law (Miscellaneous Provisions) Act, 2008 that publication or broadcast of any matter relating to the proceedings which would or would be likely to identify the Applicant and their condition be and is prohibited. I have continued that Order in being.

2 The matter was heard before me on the 26 ^th February 2024, a Certificate of Detention having been filed by the first named Respondent. The said Certificate indicated that the Applicant was detained consequent upon an Admission Order dated the 25 ^th January 2024 pursuant to section 14(1)(a) and section 15(1) of the Mental Health Act, 2001 to 2018 (‘the Acts’) which said Admission Order had been extended by a Renewal Order made under section 15(2) of the Acts dated the 9 ^th February 2024.

FACTUAL BACKGROUND

• (a) The Applicant was admitted to an Approved Centre within the meaning of the Acts on the 24 ^th January 2024. An Admission Order was made on that date by Dr. E. No issue arises in relation to the validity or lawfulness of this Admission Order.

• (b) Pursuant to section 15(1) of the Acts, the Admission Order remained in force for a period of 21 days from the date of its making, being the 14 ^th February 2024.

• (c) Dr. E. examined the Applicant on the 9 ^th February 2024 at approximately 9 am and was of the opinion that the Applicant continued to suffer from a mental disorder.

• (d) Dr. E. commenced the filling out of a Form 7 in the context of activating a Renewal Order on that same date at approximately 12.30 pm. In error, Part 10 of the Form 7 was not completed by the doctor, Part 10, importantly, being the expiry date of the Renewal Order and, in consequence, indicating the end of the detention period being activated by the Renewal Order. The Form 7 was otherwise completed and was signed, dated and timed by the doctor.

• (e) A Patient Notification Form was completed by Dr. E. on the 9 ^th February 2024, which Patient Notification Form is signed, dated and timed, indicating that it was completed within minutes of the incomplete Form 7. The Patient Notification Form indicated that the Renewal Order would come into effect on the 15 ^th February 2024 and would end on the 9 ^th May 2024. The Patient Notification Form was notified to the Applicant shortly after its completion.

• (f) The first named Respondent attempted to send the Renewal Notice to the Mental Health Commission (‘the MHC’) thereafter (it was accepted that this attempt was likely made within the 24 hour period required by section 16(1) of the Acts) using the online portal provided by the Commission but was not accepted due to the error therein being the absence of a detention expiry date in Part 10 thereof.

• (g) On the 12 ^th February 2024, Dr. E. inserted the expiry date into Part 10 of Form 7. The Form was not resigned on that date and the date thereof remained the 9 ^th February 2024. On the 12 ^th February 2024, with this insertion having been made a further attempt was made to send the form to the MHC, which attempt was successful, resulting in the sending of the altered Form 7 to the MHC.

• (h) Dr. E. in a report to me dated the 24 ^th February 2024 which was exhibited in the Affidavit of the first named Respondent confirms that, following an examination of the Applicant on that date, continued detention an involuntary patient is required, that there is no less restrictive option to ensure the Applicant receives required treatment and that the Applicant continues to suffer from a mental disorder within the meaning of the Acts. The Applicant was not in a position to adduce evidence to contradict this report.

ISSUES ARISING

• (a) Was the Renewal Order made on the 9 ^th February 2024 a valid Order?

• (b) Was the said Renewal Order capable of amendment?

• (c) Is the detention of the Applicant on the authority of the Renewal Order aforementioned unlawful due to the failure to notify the Applicant thereof?

• (d) If the Applicant is being unlawfully detained, what is the appropriate order to be made by this Court having regard to his current psychiatric condition?

LEGAL PRINCIPLES APPLICABLE

3 The important protections created by the Acts and the importance of such protections being created has been recognised in many decisions. In I.F. v Mental Health Tribunal [2019] IESC 44, [2020] 1 IR 604, Dunne J. stated:

“It is important to emphasise that the thrust of the 2001 Act is the creation of significant protection for a patient who may be the subject of an involuntary detention. It has always been a hallmark of a constitutional democracy such as outs that the deprivation of the liberty of an individual is not to be lightly undertaken. This is so whether one is concerned with the situation of a person convicted of a criminal offence or a situation such as this where a person may be the subject of an involuntary detention by reason of the state of their mental health. It is not therefore surprising that the structure of the 2001 Act is predicated on the need to ensure that no one is deprived of their liberty without appropriate safeguards being in place which allow them to challenge the basis of their detention.”

4 In this regard, it is important to recognise the whole scheme of the Acts which provide for a range of protections including the formation of professional opinions, the limitation of periods of detention, the completion of forms which include necessary information, the conveying of information concerning the statutory provisions invoked and the legal entitlements arising to the patient and review by an independent tribunal. The Acts comprise a suite of protections appropriate and necessary having regard to the nature of the individual rights being intruded upon. Over and above these statutory protections, is the protection afforded by the Constitution and, in particular, by the invocation of Article 40.4 in applications such as the present.

ARTICLE 40.4.2 RELIEF

5 The circumstances in which relief pursuant to Article 40.4 of Bunreacht na hÉireann is appropriate in the context of mental health cases have been considered in A.B. v. Clinical Director of St. Loman's Hospital [2018] 3 IR 710. Hogan J. states at Paragraph 99:

“It is accordingly clear that the High Court could direct the release of an involuntary patient by way of an Article 40.4.2 application not only where the order in question was good on its face, but also where there had been a fundamental breach of constitutional rights or the existence of some other material defect in the process leading to the making of the detention order in question.”

6 The Supreme Court has held in I.F. v Mental Health Tribunal [2019] IESC 44, [2020] 1 IR 604, a valid Renewal Order operates to extend the period of operation of an Admission Order. Therefore, if there was a valid Renewal Order herein it would operate to extend the Admission Order (which was to terminate on the 14 ^th February 2024) from immediately after that date to the 9 ^th May 2024 which would be in accordance with the statutory three month time limit for the extension of detention pursuant to a Renewal Order. However, the importance of the Renewal Order in the chain of events is clearly indicated by Hogan J. in P.D. v Clinical Director, Department of Psychiatry, Connolly Hospital [2014] IEHC 58 where he states:

“…, as it is this renewal order which forms the basis of the applicant's current detention, there is no escaping the fact that this order contains errors in relation to the document which forms the current legal basis of the applicant's detention.”

7 The Renewal Order in the present case as prepared and signed off by Dr. E. on the 9 ^th February 2024 undoubtedly contained a very serious error. In the context of the lawful deprivation...