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Cite as: [2004] IEHC 361

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[2004] 1736 SS

[2004]IEHC 361

THE HIGH COURT

IN THE MATTER OF

THE CONSTITUTION

ARTICLE 40.4 THEREOF

BETWEEN

ERIC ORTON

APPLICANT

AND

St. JOHN OF GOD HOSPITAL STILLORGAN

RESPONDENT

Judgment of Finnegan P. delivered on the 15^th day of November 2004.

The Applicant applied informally by letter to the Court pursuant to Article 40.4 of the Constitution in relation to his detention in St. John of Gods Hospital Stillorgan. On foot of that application I made an order requiring a return and the production of the Applicant in Court. The Applicant was duly produced in Court and the application, certificate and order for his reception and detention pursuant to the Mental Health Act 1945 section 184 was produced. The same was in Form No. 6 prescribed by the Mental Treatment Regulations 1961 S.I. 261 of 1961 and was regular on its face. I adjourned the matter to enable Solicitor and Counsel assigned by me to the Applicant to satisfy themselves that there was no irregularity or infirmity affecting the application,certificate and order for his reception and detention not apparent on the face of the same.

Counsel on behalf of the Applicant diligently investigated the circumstances in which the application, certificate and order was made and because of the urgency of the matter and delay which would be incurred in having an Affidavit sworn by the Applicant Counsel recounted her instructions. Arising out of the same two matters arose.

It was submitted that there was a non compliance with the requirements of the Mental Treatment Act 1953 section 5(3)(i) in that the Applicant was not informed of the nature of the medical certificate.

It was submitted that there was a non compliance with the requirements of the Mental Treatment Act 1953 section 5(3)(i) in that the Applicant was not informed that he might request a second medical examination.

I am satisfied that on the first matter raised there was a compliance with the section. At Donnybrook Garda Station the Applicant was informed by the Sergeant attending to the matter in relation to the certificate under section 184 of the 1945 Act as

follows –

"This entitles me to arrest you under the Mental Health Act".

In the circumstances of this case I am satisfied that this represents a sufficient compliance with the section. The Applicant had previously been detained as a temporary chargeable patient and in these circumstances I am satisfied that this was a sufficient notification of the effect of the certificate.

As to the second matter raised a second opinion was in fact obtained although on the Applicant's account he was not informed of his right to a second opinion. The Applicant co-operated with the medical practitioner providing the second opinion. Again on his own account he was informed by the Sergeant dealing with the matter that Dr. Maloney the medical practitioner who gave the second opinion was on his way. In these circumstances I am satisfied that the requirements of the Act were in fact met by a second opinion being obtained with the co-operation of the Applicant although he might not in terms have requested a second opinion.

I am acutely aware that it is desirable there should be absolute procedural regularity where a citizen is to be deprived of their liberty. However one must have regard to the circumstances which may affect the invocation of section 184 of the Mental Treatment Act 1945. The person whom it is sought to make a temporary chargeable patient may not be in a position to appreciate the procedures which have been followed but nonetheless the Act requires that they be followed. In such circumstances it would be desirable that a second medical opinion be obtained albeit the same was not requested. If the substantive requirements of the Act are complied with, as in this case by the provision of a second opinion, I am satisfied that this is sufficient compliance.

In this case I have the benefit of the medical report from my own Medical Visitor which confirms the two medical opinions obtained for the purposes of the detention of the Applicant. I have regard to the circumstances that on his own account the Applicant was in a disturbed condition believing that he was being spoken to and spied upon by his television set and this to the extent that he destroyed the same and sustained injury in so doing. On the basis of the Medical Visitor's Report it is desirable and indeed essential that he should receive treatment. He appears to have no insight into his condition and is non compliant with medication. I am satisfied on the Applicant's own account as related to his Counsel in instructions that the objectives of section 184 of the Mental Treatment Act 1945 were complied with in substance by the giving to the Applicant of the information which he acknowledges he was given in relation to the nature of the certificate and by the obtaining of the opinion of a second medical practitioner.

In these circumstances I make no order on the application pursuant to the Constitution Article 40.4 thereof.

Approved by Finnegan P.