C –v- Clinical Director of St Patrick’s Hospital Anor
High Court
Judgment was delivered by Mr Justice McMahon on January 20th, 2009
Judgment
A person detained under the 2001 Mental Health Act, though initially detained illegally, was subsequently detained in accordance with law. The 2001 Act in its entirety establishes a procedure for continuous and regular assessment and supervision of the detention of a person under that legislation in a manner consistent with the Constitution and the European Convention on Human Rights.
Background
The case concerns a 69-year-old woman who suffers from bipolar defective disorder, diagnosed in 1984. She had eight previous admissions to St Patrick’s hospital, and at least two to St John of God’s. She also suffers from diabetes.
Dr Seamus O’Ceallaigh, the admitting psychiatrist, outlined the background in an affidavit, which was not disputed. Following a statement from the woman that the Holy Spirit and Our Lady had directed her to stop taking her medication, her husband made an application for her admission to hospital under the 2001 Act on December 8th, and her GP, Dr Patrick Feeney, made a recommendation under the Act. Shortly afterwards she was brought by gardaí to St Patrick’s and admitted shortly after midnight.
Dr O’Ceallaigh said he did not know who contacted the gardaí, and to the best of his knowledge the gardaí were not requested to remove her to the hospital by the doctor or by any member of the hospital staff.
He made an admission order on December 9th, on the basis that the woman was suffering from a mental disorder within the meaning of the Act. She required at the time, and continued to require, inpatient treatment in an approved centre, he said.
The patient underwent independent medical examinations on December 12th and 15th by Dr Raju Bangaru, which concluded that she was manic, noncompliant with her medication and required further inpatient treatment, according to Dr O’Ceallaigh.
The Mental Health Tribunal affirmed the admission order on December 19th, he said. Here it also considered a preliminary issue concerning her arrest by gardaí raised by the applicant’s solicitor, and ruled “an apparent breach of [section] 13 during the admission procedure did not render the admission void”.
A renewal order for four weeks was made by Dr O’Ceallaigh on December 19th. An independent medical examination by Dr Bangaru took place on December 29th.
Mr Justice McMahon said it was clear the hospital was unaware of what occurred prior to her admission.
Her solicitor said she had been out walking with her son when she was stopped by gardaí and taken to St Patrick’s. He said he had raised this as a preliminary issue with the Mental Health Tribunal when it met 10 days later. After a brief adjournment, it stated that, while there may have been a breach of the Act, it did not have jurisdiction to revoke the order on this basis.
The applicant argued that, because she was unlawfully detained and delivered to the hospital by the gardaí, the whole process that followed was tainted, which must lead to the conclusion that now and since that date she was illegally detained.
No information was before the court as to how the gardaí came to be involved. Mr Justice McMahon said he would assume that she was unlawfully detained in order to entertain the legal submissions.
Under sections 12 and 13 of the Mental Health Act, the gardaí may take into custody a person who the Garda Síochána had reasonable grounds to believe was suffering from a mental disorder likely to lead to harm to him or herself or another. There was no suggestion here that the applicant was in this situation.
The Act also permits the Garda to become involved at the request of a medical practitioner, and where he or she, and the clinical director of the approved centre, are of the view that there is a serious risk of harm to the person concerned or to another person. No such request was made.
“It would appear there that the applicant is correct in saying that neither of these sections would appear to justify the Garda intervention in detaining the applicant,” Mr Justice McMahon said. He added that if the gardaí had exceeded their powers they may have to answer to the applicant for that in another forum.
Decision
He said there was no question of the respondents being responsible for the wrongful conduct of third parties over whom they had no control and whom they did not instruct.
Mr Justice McMahon said the applicant had a long history of mental illness and was well known to the hospital. She was the subject of an application properly made by her husband and a recommendation from her GP for involuntary admission. In normal circumstances, once such a recommendation is received by the clinical director the procedures set out in the Act apply, and that was what happened here.
“The clinical director acted in a wholly proper manner in making the order,” he said. “It is my view that without any knowledge or intimation by the clinical director or other hospital personnel of any irregularity in the history of how the applicant came to be presented to the hospital, the clinical director acted as he was obliged to do under the legislation.”
He said the validity of the admission order was to be examined, not on the basis of a possible historical frailty, but on its own terms and context, that of the Mental Health Act.
He cited the decision of Feeney J in RL –v- The Clinical Director of St Brendan’s Hospital Ors (unreported, January 17th, 2008), which was later confirmed by the Supreme Court, which points out that when the Act refers to the review process, it specifically omits section 13 from review, as it refers to the manner in which a person is brought to the institution, received and not detained.
In upholding the High Court decision, the Supreme Court had pointed out that section 14 provided for the examination of the patient on his or her arrival in the institution, which would be followed either by an involuntary admission order and appropriate treatment, or by a refusal to make such an order. The Supreme Court had commented that suggesting section 14 could not work if there was a defect in the procedure under section 13 ran contrary to the scheme and spirit of the Act.
In this case the detention up to December 19th was predicated on a lawful admission order and was lawful.
When the issue of the woman being arrested by gardaí was brought to the attention of the Mental Health Tribunal on December 19th, the tribunal considered the matter, but held it had no jurisdiction to act other than by continuing with the hearing. It also offered to adjourn.
After consulting with his client, the solicitor went ahead with the hearing, while reserving his position on the complaint.
Counsel for the applicant had also argued the tribunal should have ordered the person’s release as soon as the matter of the arrest was drawn to its attention. The tribunal was a statutory body, and only had such powers as had been given to it under the Mental Health Act 2001. No statutory power had been given to it to make such an order.
The person with the power to order the applicant’s release was the clinical director, and she could have sought an adjournment of the tribunal hearing and a meeting with the clinical director, but did not do so.
Counsel had referred to the Storck –v- Germany case in the European Court of Human Rights, but this was different on its facts. A mechanism was available to this applicant to raise the issue of her arrest with the person who had the power to order her release, but she did not do so.
The Mental Health Act 2001 clearly establishes a procedure for continuous and regular assessment and supervision of a person under the legislation in a manner that wholly conforms to the requirements of the European Convention on Human Rights as set out in the Storck case, Mr Justice McMahon said.
As, by the time of the delivery of the judgment, the Mental Health Tribunal had reconvened and revoked its earlier order, so the applicant was no longer detained, so no order of the court was necessary.
The full judgment is on www.courts.ie
Colman Fitzgerald SC and Michael Lynn, instructed by Anthony Fay Co, for the plaintiff; Pauline Walley SC and Caroline Costello, instructed by A L Goodbody, for St Patrick’s Hospital; Shane Murphy SC and Paul Anthony McDermott, instructed by Arthur Cox Co, for Mental Health Tribunal