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Cite as: [2007] IEHC 403, [2010] 3 IR 426

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Neutral Citation No: [2007] IEHC 403

THE HIGH COURT

[2007 Case No. 1555 SS]

BETWEEN

B

V.

THE CLINICAL DIRECTOR OF OUR LADY'S HOSPITAL NAVAN AND OTHERS

EXTEMPORE JUDGMENT of Mr. Justice Sheehan delivered the 5^th day of November, 2007.

In this case the applicant seeks an order of Habeas Corpus directing her release pursuant to article 44 of the Constitution of Ireland 1937. The two grounds on which the applicant contends she is in unlawful custody are as follows:

1. The decision of the Mental Health Tribunal hearing on the 22^nd day of October 2007 is invalid because of the flawed manner in which the said Tribunal conducted its hearing. As a result of this the applicant was in unlawful custody and the subsequent renewal order is invalid as it was made in respect of a person in unlawful custody.

2. The second ground is that the applicant contends that by virtue of Section 21.4 of the Mental Health Act 2001, the renewal order made on the 22^nd day of October 2007 by Dr Katherine Curtin of Our Lady's Hospital, Navan should have been made by the responsible consultant psychiatrist at St. Patrick's Hospital, being the approved centre from which he was transferred to Our Lady's Hospital, Navan and the said renewal order could only provide for her continuing detention in St Patrick's Hospital.

Mental Health of Applicant.

According to Dr Katherine Hunt, the consultant psychiatrist presently responsible for the care of the applicant in Our Lady's Hospital, Navan, the applicant continues to suffer from a mental disorder of such severity that she continues to require inpatient treatment.

3. Relevant Legislation, Mental Health Act 2001

Section 21

—(1) Where the clinical director of an approved centre is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purpose of obtaining special treatment for such patient, that he or she should be transferred to another approved centre (other than the Central Mental Hospital), the clinical director may arrange for the transfer of the patient to the other centre with the consent of the clinical director of that centre.

(2) (a) Where the clinical director of an approved centre—

(i) is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purpose of obtaining special treatment for such a patient, to transfer him or her to the Central Mental Hospital, and

(ii) proposes to do so,

he or she shall notify the Commission in writing of the proposal and the Commission shall refer the proposal to a tribunal.

(b) Where a proposal is referred to a tribunal under this section, the tribunal shall review the proposal as soon as may be but not later than 14 days thereafter and shall either—

(i) if it is satisfied that it is in the best interest of the health of the patient concerned, authorise the transfer of the patient concerned, or

(ii) if it is not so satisfied, refuse to authorise it.

(c) The provisions of sections 19 and 49 shall apply to the referral of a proposal to a tribunal under this section as they apply to the referral of an admission order to a tribunal under section 17 with any necessary modifications.

(d) Effect shall not be given to a decision to which paragraph (b) applies before—

(i) the expiration of the time for the bringing of an appeal to the Circuit Court, or

(ii) if such an appeal is brought, the determination or withdrawal thereof.

(3) Where a patient is transferred to an approved centre under this section, the clinical director of the centre from which he or she has been transferred shall, as soon as may be, give notice in writing of the transfer to the Commission.

(4) The detention of a patient in another approved centre under this section shall be deemed for the purposes of this Act to be detention in the centre from which he or she was transferred.

(5) In this section references to an admission order include references to a renewal order.

Section 23

—(1) Where a person (other than a child) who is being treated in an approved centre as a voluntary patient indicates at any time that he or she wishes to leave the approved centre, then, if a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the person is suffering from a mental disorder, he or she may detain the person for a period not exceeding 24 hours or such shorter period as may be prescribed, beginning at the time aforesaid.

(2) Where the parents of a child who is being treated in an approved centre as a voluntary patient, or either of them, or a person acting in loco parentis indicates that he or she wishes to remove the child from the approved centre and a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the child is suffering from a mental disorder, the child may be detained and placed in the custody of the health board for the area in which he or she is for the time being.

(3) Where a child is detained in accordance with this section, the health board shall, unless it returns the child to his or her parents, or either of them, or a person acting in loco parentis, make an application under section 25 at the next sitting of the District Court held in the same district court district or, in the event that the next such sitting is not due to be held within 3 days of the date on which the child is placed in the case of the health board, at a sitting of the District Court, which has been specially arranged, held within the said 3 days, and the health board shall retain custody of the child pending the hearing of that application.

(4) The provisions of section 13(4) of the Child Care Act, 1991 , shall apply to the making of an application in respect of a child to whom this section applies with any necessary modifications.

Section 24

—(1) Where a person (other than a child) is detained pursuant to section 23 , the consultant psychiatrist responsible for the care and treatment of the person prior to his or her detention shall either discharge the person or arrange for him or her to be examined by another consultant psychiatrist who is not a spouse or relative of the person.

(2) If, following such an examination, the second-mentioned consultant psychiatrist—

(a) is satisfied that the person is suffering from a mental disorder, he or she shall issue a certificate in writing in a form specified by the Commission stating that he or she is of opinion that because of such mental disorder the person should be detained in the approved centre, or

(b) is not so satisfied, he or she shall issue a certificate in writing in a form specified by the Commission stating that he or she is of opinion that the person should not be detained and the person shall thereupon be discharged.

(3) Where a certificate is issued under subsection (2)(a), the consultant psychiatrist responsible for the care and treatment of the person immediately before his or her detention under section 23 shall make an admission order in a form specified by the Commission for the reception, detention and treatment of the person in the approved centre.

(4) The provisions of sections 15 to 22 shall apply to a person detained under this section as they apply to a person detained under section 14 with any necessary modifications.

(5) For the purpose of carrying out an examination under subsection (2), the consultant psychiatrist concerned shall be entitled to take charge of the person concerned for the period of 24 hours referred to in section 23 .

(6) References in this section to the consultant psychiatrist responsible for the care and treatment of the person include references to a consultant psychiatrist acting on behalf of the first-mentioned consultant psychiatrist.

Relevant Dates

On the 28^th September 2007 the applicant was admitted to St Patrick's Hospital, Dublin as a voluntary patient. On the 2^nd October 2007 the applicant's status changed from voluntary to involuntary. On the 9^th October 2007 the applicant was subject to an independent medical examination. On the 10^th October 2007 the applicant was transferred to Our Lady's Hospital, Navan, Co.Meath. On the 22^nd October 2007, the Mental Health Tribunal reviewed and affirmed the admission order. On the same date a renewal order was made in respect of the applicant to detain her for three months. On the 26^th October 2007 an application was made to the High Court for an enquiry pursuant to Article 40 of the Constitution and the 30^th October 2007 was the return date for this enquiry.

At the Mental Health Tribunal hearing on the 22^nd October 2007 the applicant was represented by Keith Walsh, solicitor, who had been appointed to represent her. The affidavit grounding the application hearing was sworn by Mr Walsh and the affidavit in reply on behalf of the Tribunal was sworn by Mr Michael Ramsey, Barrister-at-Law and Chairman of the Tribunal. Dr Katharine Curtin of Our Lady's Hospital, Navan and Dr Lucey of St Patrick's Hospital both filed replying affidavits as first and second named respondents. While Mr Walsh and Dr. Curtin have different recollections as to what took place at the tribunal hearing it is common case that Mr Walsh raised the issue of compliance with Sections 23 & 24 of the Mental Health Act 2001.

Section 23 provides for the detention of a voluntary patient who indicates an intention to leave the hospital initially for a 24 hour period. According to Mr Ramsey the tribunal believed that Section 23 and 24 had been complied with and he states in his affidavit that the tribunal relied on the following matters in reaching its conclusion which I now quote directly from his Affidavit.

"1. The fact that Dr Lucey had signed form 13. This is something he would only have done if he was satisfied that the applicant had indicated that she wished to leave St. Patrick's Hospital.

2. The fact that Section 24.2 (a) certificate and form 13 had been signed by Michael McDonagh, consultant psychiatrist to the effect that the applicant refuses to remain in hospital and requires inpatient care.

3. The fact that the note from Dr Lucey's registrar expressly referred to the risk of the applicant absconding. This note was shown to both Dr Curtin and Mr Walsh. The note forms part of the applicant's records in Our Lady's Hospital, Navan. We would have sight of that note from our inspection of the charge prior to the hearing but we would not have been furnished with a copy of the note otherwise".

Mr McDonagh contends that it is simply not good enough for the tribunal to rely upon a ticked box as evidence of compliance and in view of the issue being raised, the said tribunal should not have proceeded to its determination on this matter without hearing oral evidence on the issue.

The tribunal was entitled to hold that there was corroboration of Section 23 compliance in the note of Dr Lucey's registrar, as well as in the certificate of Dr Michael McDonagh and in all the circumstances of this case I hold that the tribunal was entitled to be satisfied that Section 23 had been complied with.

The second point Mr McDonagh makes is that subsequent to the transfer of the applicant to Our Lady's Hospital, Navan, she remained for the purposes of the Act, a person deemed to be detained at St. Patrick's Hospital and the renewal order is invalid because it should direct her detention in St Patrick's and/or it is also invalid because it should have been made by the consultant psychiatrist in St. Patrick's Hospital. Section 21.4 of the Mental Health Act 2001 states: "The detention of a patient in another approved centre under this section shall be deemed for the purposes of this act to be detention in the centre from which he or she was transferred." Mr McEnroy submitted that the only way to read the section is to conclude that the transferring hospital continues to have an involvement until the Renewal Order is made. If Mr McDonagh's argument is correct and on the face of it, it is one way of reading the section, then the position goes further than Mr McEnroy asserts. If his interpretation is correct the treatment of the applicant would have to be interrupted by returning her to St Patrick's Hospital until the necessary orders were made to transfer her back again to Our Lady's Hospital, Navan. On this basis as long as she was an in-patient she would always be deemed to be in St Patrick's Hospital.

Mr McDermott on behalf of the Mental Health Tribunal and Mental Health Commissioners supported Mr McEnroy's submission and went on to say in respect of Section 21(4) of the Mental Health Act 2001 that the relevant provision is an enabling one which enables a Renewal Order to relate back to the first hospital in circumstances where that would make sense. He submits that Section 21.4 was intended to provide flexibility and was not intended to be some sort of additional mandatory hurdle. He further takes the example of someone admitted to hospital while on holiday in Donegal and then transferred back to their local hospital in Cork. He submits that it would be absurd to say that all the renewal orders extending that person's detention would have to be done on the basis that the person was deemed to be a patient in the Donegal hospital when he or she is going to remain in Cork until they are well again and that there is not the slightest chance that they will return to Donegal.

Mr McDermott further submits that to interpret the Act in this way would be to give it an absurd interpretation and not one that could possibly promote the best interests of the patient. Ms Stewart on behalf of the first named respondent submitted that in approaching Section 21.4 and interpreting it the court must be mindful of the guidelines enunciated in the judgment of the Supreme Court in Gooding v. St Otteran's Hospital [2005] IR. Having regard to this judgment and bearing in mind the submissions of the respondents and in particular Mr McEnroy's submission that what the Act is contemplating is that these temporary transfers shall be applicable only for so long as t he basic order is in place I hold with the respondents on the second ground. I am satisfied that the Return Order is a valid return and I refuse the application for Habeas Corpus.

Approved: Sheehan J.