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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> E.H. -v- St. Vincent's Hospital & ors  IESC 46 (28 May 2009)
Cite as:  IESC 46,  2 ILRM 149,  3 IR 774
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Judgment Title: E.H. -v- St. Vincent's Hospital & ors
Composition of Court: Murray C.J., Fennelly J., Kearns J., Macken J., Finnegan J.
Judgment by: Kearns J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No. 094 of 2009]
IN THE MATTER OF AN APPLICATION
FOR AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND, 1937
THE CLINICAL DIRECTOR OF ST. VINCENT’S HOSPITAL, AIDEEN FREYNE AND THE MENTAL HEALTH TRIBUNAL
JUDGMENT of Mr. Justice Kearns delivered the 28th day of May, 2009
This is an application under Article 40 of the Constitution by way of appeal from the order of the High Court (O’Neill J.) dated 24th February, 2009 which refused to discharge the applicant from detention at St. Vincent’s Hospital in Dublin. In this appeal the applicant seeks:-
(b) A declaration that the applicant by reason of her incompetence was not a truly voluntary patient in St. Vincent’s Hospital from 10th December, 2008 to 22nd December, 2008.
(c) A declaration that the definition of “voluntary patient” in s.2 of the Mental Health Act 2001 as found by the High Court herein is incompatible with the provisions of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended.
E. H. is a single woman who was born on 25th May, 1940. Historically, she has resided alone in a dwellinghouse in south County Dublin. Her only close relative appears to be a brother who lives elsewhere in Dublin.
Ms. H. was first seen by the psychiatric service in St. Vincent’s Hospital on 16th May, 2008 when she was being treated there in relation to a fracture of her leg. At that time the medical team attempting to treat her injury noted that she appeared to be paranoid and was refusing treatment. On 23rd May, 2008, Ms. H. was assessed by Dr. Aideen Freyne, consultant psychiatrist at St. Vincent’s Hospital, who concluded that Ms. H. was suffering from a mental disorder. She prescribed antipsychotic medication to treat a psychotic condition. The extent of her illness is exemplified by Dr. Freyne by reference to the applicant’s belief at that time that she had inherited a substantial cash fortune of millions of euro through the female line of her family and that she needed to spend that money in order to save Dun Laoghaire Harbour.
Ms. H. was admitted to Elm Mount Psychiatric Unit in St. Vincent’s Hospital on 3rd June, 2008 as an involuntary patient. At that time she was not accepting medical treatment on the surgical ward in the general hospital complex as she did not believe she was ill. She was also refusing to eat or drink at this time. It appears that Ms. H. responded well to the course of antipsychotic medication to the point where it was possible to discharge her from Elm Mount Unit on 30th June, 2008 with a defined discharge plan in place to meet her continuing needs, including an occupational therapy assessment and family support from her brother who had been continuously involved in her care and welfare arrangements.
However, following her discharge, Ms. H. refused to co-operate with the discharge care plan and rejected the package of health and personal social services that had been put in place for her, including a home help service and assistance from her community psychiatric nurse. Crucially, the applicant stopped taking her essential medication.
In mid-July, 2008 Ms. H’s personal circumstances at home had become critical. When health personnel called to her home on 17th July, they found the applicant to be seriously ill and almost unconscious. She was dehydrated and suffering from a kidney infection. She was removed immediately to St. Michael’s Hospital where her clinical needs were treated and where she was further assessed both by a locum psychiatrist in St. Michael’s and by a liaison psychiatrist, subsequent to which she was transferred back to the Elm Mount Unit on 7th August, 2008. This admission was also involuntary and the admission order was affirmed by a Mental Health Tribunal on 25th August, 2008. A renewal order was made on 10th September, 2008.
It is important to stress just how ill this unfortunate woman was. When she left hospital on 30th June, 2008 she weighed 51.9 kg., which is slightly below average, but on 11th August, 2008 she weighed only 41.2 kg., which was seriously underweight and an indicator of significant self-neglect. Following her re-admission to Elm Mount Unit she was noted to be depressed, with severe mood swings suggesting a bi-polar disorder. She was treated with antipsychotic and antidepressant medication with a specialised psychiatric nursing care regime to encourage her to eat and drink. In October, 2008 she was treated with lithium, a mood stabiliser, which was intended to make Ms. H’s mental condition sufficiently stable to facilitate her discharge into long term care. However, as noted by Dr. Freyne in her affidavit, there was evidence on the occasion of the re-admission of Ms. H. that she was developing dementia. A CT Scan showed ischaemic changes suggestive of a possible lack of oxygen to the brain. Furthermore, her performance in clinical cognitive testing was also found to be fluctuating. She further demonstrated symptoms of passivity and lack of motivation at this time. She required the assistance of nursing staff to carry out the basic requirements of personal hygiene. She had stopped paying her rent in January, 2008, suggesting that she was unable to manage her affairs.
On 10th December, 2008 the renewal order under which the applicant was being detained in St. Vincent’s Hospital was revoked by the Mental Health Tribunal. Apparently a date had been left out of a renewal form and the Tribunal took the view that in view of this omission it lacked jurisdiction to further renew the order under which Ms. H. was being detained.
In her affidavit Dr. Freyne states that this was explained to Ms. H. who indicated that she was pleased that there was no longer an order detaining her in the unit. Dr. Freyne further deposes that Ms. H. verbally agreed to stay until her brother came to collect her at a future date. Dr. Freyne states further in her affidavit that this was not the first occasion where in the course of her clinical treatment of the applicant that she agreed to remain as a voluntary patient in the unit. She had previously agreed to remain as a voluntary patient in the unit when an earlier detention order had been revoked in June, 2008.
However, Ms. H. did not sign the voluntary admission form and the hospital records indicate that she lacked the “capacity” to sign a voluntary form “because of her dementia and mental illness”. The hospital records further note that if Ms. H. were to attempt to leave the ward she would require to be detained under s.23 of the Mental Health Act 2001.
The records further indicate that on 22nd December, 2008 Ms. H. did indeed try to leave the unit and was found at the doors leading to Elm Mount upper ward. The records go on to state that in view of her attempts to leave the unit, the procedures under sections 23 and 24 of the Act of 2001 were then invoked.
This detention enabled ongoing treatment to be provided for Ms. H. which consisted of intramuscular antipsychotic medication. Her mood gradually improved and she began taking oral medication again. Since that time further changes have been made to her medication and her condition continues to improve. The involuntary detention of the applicant made on 22nd December, 2008 was reviewed by the Mental Health Tribunal on 9th January, 2009. On that occasion the Mental Health Tribunal affirmed the admission order made on 22nd December, 2008. Various renewal orders have thereafter been made and, as of the date of the hearing of the appeal herein, Ms. H. is detained in St. Vincent’s Hospital on foot of a further renewal order made on 9th April, 2009.
SUBMISSIONS OF THE PARTIES
At the outset of the hearing of the appeal, Mr. John Rogers, senior counsel on behalf of Ms. H., stated in response to a direct question from the Court that Ms. H., notwithstanding her mental illness, had been and was competent to give instructions to her legal advisers in this case. He maintained, however, that Ms. H. was at no time during her stays in St. Vincent’s Hospital a voluntary patient within the definition contained in s.2 of the Mental Health Act 2001. He submitted that, properly understood, the definition of “voluntary patient” in the Act had to be taken as meaning a person who freely and willingly consented to remaining in hospital. That was not the case here, because when Ms. H. sought to leave St. Vincent’s Hospital on 22nd December, 2008 she was prevented from doing so. Furthermore, for the period of ten days preceding that event, she had been deprived of the protections set out in the Mental Health Act, 2001, from s.14 onwards, such as her statutory right to a review of her detention. Mr. Rogers submitted further that the term “voluntary patient” should be given a narrow and literal interpretation which, he submitted, would be in accordance with the applicant’s rights under the European Convention on Human Rights. As Ms. H. was not in truth a voluntary patient during the ten days in question, having regard to the fact that her mental condition altogether precluded her giving such consent, her detention during that period was accordingly unlawful. Mr. Rogers further submitted that this unlawful detention tainted or had a domino effect on the procedures subsequently deployed under s.23 and s.24 of the Act of 2001. These procedures could only be deployed in respect of a person who was a voluntary patient. Accordingly, Mr. Rogers argued, Ms. H’s detention was unlawful and remained unlawful. While accepting that Ms. H. was a person with serious mental illness, who had been diagnosed by his own expert as suffering from vascular dementia of moderate severity complicated by organic bi-polar affective disorder, Mr. Rogers stated that it was not for the Court to “second guess” or speculate as to what would become of Ms. H. if her release from St. Vincent’s was directed by the Court.
In response Mr. Felix McEnroy, senior counsel for the first and second named respondents, pointed out that the High Court had held that E. H. was between 10th December, 2008 and 22nd December, 2008 a voluntary patient within the meaning of s.2(1) of the Mental Health Act 2001. The High Court had further held that Dr. Freyne lawfully invoked the provisions of ss. 23 and 24 of the Mental Health Act, 2001 to make an order detaining her for treatment. He submitted that the definition of “voluntary patient” in s.2(1) of the Mental Health Act 2001 had a particular meaning and that meaning was not repugnant to the provisions of the Constitution, nor does it violate Ms. H.’s rights under Article 5 of the European Convention on Human Rights.
Mr. McEnroy further submitted that the remedy of an inquiry under Article 40.4.2 of the Constitution exists to determine only one legal issue, namely, whether, or not, at the time of the hearing of such inquiry the applicant is in unlawful detention. At the time that the application for an inquiry under Article 40 was made to the High Court, the detention complained of by E. H. had come to an end a month previously. The whole application was therefore a moot.
With regard to the domino effect argument, there had been no specific complaint that the statutory processes set out in the Mental Health Act, 2001 were not correctly followed in the making of subsequent detention orders by either Dr. Freyne or in the independent statutory reviews of them by the Mental Health Tribunals. Even if there had been some irregularity in the arrangements put in place for Ms. H. between the 10th December, 2008 and 22nd December, 2008, there was no reason to believe that subsequent orders had been “infected” or that any domino effect kicked in. In this respect Mr. McEnroy relied upon previous decisions of this Court in R.L. v. The Clinical Director of St. Brendan’s Hospital and Others (Unreported, Supreme Court, 15th February, 2008) and Cudden v. Clinical Director of St. Brigid’s Hospital (Unreported, Supreme Court, 13th March, 2009).
Mr. Peter Finlay, senior counsel on behalf of the third named respondent, adopted and supported the submissions advanced by Mr. McEnroy and further submitted that the proposition advanced by Mr. Rogers was contrary to the scheme and spirit of the Act of 2001. This was a legislative scheme which had been put in place for the better protection of persons such as Ms. H. and he cited in support a passage from the judgment delivered by McGuinness J. in Gooden v. St. Otteran’s Hospital  3 I.R. 617 which stressed the paternalistic and protective character of the legislation in question.
THE MENTAL HEALTH ACT, 2001
There can be no doubt but that the Mental Health Act, 2001 was designed with the best interests of persons with mental disorder in mind. Thus, under s.4(1) of the Act it is provided as follows:-
. . . .
(b) an authorised officer,
(c) a member of the Garda Síochána, or
(d) subject to the provisions of subsection (2), any other person.
(b) an authorised officer or member of the Garda Síochána who is a relative of the person or of the spouse of the person,
(c) a member of the governing body, or the staff, or the person in charge of the approved centre concerned,
(d) any person with an interest in the payments (if any) to be made in respect of the taking care of the person concerned in the approved centre concerned,
(e) any registered medical practitioner who provides a regular medical service at the approved centre concerned,
(f) the spouse, parent, grandparent, brother, sister, uncle or aunt of any of the persons mentioned in the foregoing paragraphs (b) to (e), whether of the whole blood, of the half blood or by affinity.
(b) if he or she is not so satisfied, refuse to make such an order.
15. - (1) An admission order shall authorise the reception, detention and treatment of the patient concerned and shall remain in force for a period of twenty-one days from the date of the making of, and, subject to sub-section (2) and section 18 (4) shall then expire.
(2) The period referred to in sub-section (1) may be extended by order (to be known as, and in this Act and referred to as 'a renewal order') by the consultant psychiatrist responsible for the care and treatment of the patient concerned for a further period not exceeding three months.
(3) The period referred to in sub-section (1) may be further extended by order made by the consultant psychiatrist concerned for a period not exceeding six months, beginning on the expiration of the renewal order made by the psychiatrist under sub-section (2) and thereafter may be further extended by order made by the psychiatrist for periods, each of which does not exceed twelve months (each of which orders is also referred to in this Act as 'a renewal order' . . .
[ii] if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice, affirm the order or
(2) If, following such an examination, the second mentioned consultant psychiatrist -
(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.
(4) The provisions of sections 15-22 shall apply to a person detained under this section as they apply to a person detained under section 14 with any necessary modifications. . . .
Right to liberty and security
As noted by the learned High Court judge herein, the first aspect of the Act of 2001 which requires consideration is the definition of a voluntary patient. It was submitted in the High Court, and again before this Court, that the word “voluntary” must be given its ordinary meaning, a meaning which respects the provisions of the Constitution and a meaning which, having regard to the State’s obligations pursuant to s.2 of the Act of 2003, respects the necessity for a freely given consent to detention by a person who has capacity to give it. Mr. Rogers submitted that where a lack of capacity by virtue of mental disorder had been clearly demonstrated, as in the instant case, it was not open to the respondents to detain such a person against her will where that person is receiving care and treatment in an approved centre but is not the subject of an admission order or renewal order. Nor could the provisions of s. 23 and s.24 of the Act of 2001 be invoked in respect of such a person as the person in question was not in reality a voluntary patient. The respondents should have followed the procedures elaborated in sections 14 – 16 of the Act of 2001 instead. In the course of his judgment, O’Neill J. summarised the factual matrix in this regard as follows at p.10:-
This was a case in which the applicant, HL, was born in 1949. He had been autistic since birth with a limited level of understanding. He was unable to speak and frequently became agitated and self-harmed. Having spent thirty years in Bournewood Hospital, he was discharged in March, 1994, initially on a trial basis, to live with carers. The hospital remained responsible for his treatment. From 1995, he attended a local authority day care centre. In July, 1997, HL became particularly agitated and began to self-harm whilst at the day centre. Staff contacted a local doctor who administered a sedative. He remained agitated and was taken to the local accident and emergency unit. Two psychiatrists, including Dr. M, who had been his treating psychiatrist for some twenty years, recommended that admission to hospital was in his best interests. He was admitted as an informal patient rather than being detained under the Mental Health Act, 1983 because he was compliant. Assessments were carried out as to whether he suffered also from a mood disorder. During this time, his carers were not allowed to visit him as it was felt that this would prejudice the ongoing assessments and lead HL to think he was able to leave hospital. Action was taken in the domestic courts to secure his release, premised on an argument that detention could only be lawful if he was placed under the Mental Health Act 1983. The application was dismissed by the High Court, which held there was a common law basis for the informal treatment of patients such as HL. The Court of Appeal allowed an appeal, holding that HL was in fact detained – as he would not have been allowed to leave – and that the right to detain someone on account of a mental disorder was under the Act of 1983. As a result, HL was formally detained in late October, 1997. On 5th December, 1997, he was allowed to go to his carers on leave. On 12th December, 1997 the hospital managers discharged HL from liability to be detained under the Act. In June, 1998, the House of Lords overturned the decision of the Court of Appeal. There were differing views as to whether HL was in fact detained before October, 1997, but the House agreed that compliant incapacitated patients could be treated in hospital as informal patients under the common law on the basis of the doctrine of necessity combined with a duty to act in the best interests of the patient. Mr. and Mrs. E, the carers of HL, complained to the Health Service Commissioner that the decision to admit him on 22nd July, 1997 was unreasonable and that his case had been managed inadequately thereafter. The Commissioner found that the initial admission was proper but that it was clear that, as he had a significantly better quality of life with his carers, he should have been returned to them speedily with the further assessments being carried out on an out-patient basis.
A breach of Article 5.1 of the Convention was alleged in that the applicant’s placement on a locked ward in the hospital from 22nd July to 29th October, 1997 (when formal powers were used) amounted to detention which was neither “in accordance with the procedure prescribed by law” nor “lawful” because (a) he was not of unsound mind; (b) the common law doctrine of necessity lacked precision and did not reflect the criteria for a valid detention under Article 5.1(e); (c) there were insufficient safeguards against arbitrary detention on grounds of necessity.
It is with the last of these considerations that Mr. Rogers is concerned. Mr. Rogers noted that at par. 121 of the court’s judgment it was stated:-
However, before considering whether this decision is of any assistance to the applicant, one must of necessity first consider the definition of “voluntary patient” within the meaning of the Act of 2001. At the outset I must confess to an immediate difficulty in reconciling the assertions of counsel for the applicant as to his client’s lack of mental capacity on the one hand with the contradictory assertion on the other that the applicant was and remains capable of instructing legal advisers. It is disquieting to say the least that in a matter of such importance and sensitivity that no rational basis beyond mere assertion was advanced for these two apparently irreconcilable propositions.
The terminology adopted in s.2 of the Act of 2001 ascribes a very particular meaning to the term “voluntary patient”. It does not describe such a person as one who freely and voluntarily gives consent to an admission order. Instead the express statutory language defines a “voluntary patient” as a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order. This definition can not be given an interpretation which is contra legem. The furthest Mr. Rogers can go is to argue that the definition must be construed and applied in accordance with the provisions of the Constitution and those provisions of the Convention designed to respect and uphold the individual’s right to freedom and personal autonomy.
Any interpretation of the term in the Act must be informed by the overall scheme and paternalistic intent of the legislation as exemplified in particular by the provisions of sections 4 and 29 of the Act. Such an approach to interpretation in this context was approved by this Court in the course of a judgment delivered by McGuinness J. in Gooden v. St. Otteran’s Hospital  3 I.R. 617 when, in relation to s. 194 of the Mental Treatment Act 1945 she emphasised that a purposive construction of the section was appropriate, stating at pp. 633 to 634:-
At first reading the wording of s. 194 appears clear and unambiguous. If, however, it is interpreted literally as providing an absolute right to physical release from the hospital and as preventing any use of the machinery of s. 184 or the making of a reception order while the patient is still in the hospital, the logical result is that the only person for whom a reception order cannot in any circumstances be made is a voluntary patient who has given notice of discharge. During the 72 hour period of notice he is inviolate and at the end of it he must be physically released. This situation would apply even if the patient in question was so mentally ill as to be a danger either to himself or the public. That this is the effect of a literal interpretation of s. 194 is candidly admitted by counsel for the applicant.”
‘The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draftsmen when it was proclaimed in Article 40.1 of the Constitution that, though all citizens, as human beings are to be held equal before the law, the State, may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others’
This passage has been generally accepted as expressing the nature and purpose of the Act of 1945. The Act provides for the detention of persons who are mentally ill, both for their own sake and for the sake of the common good.”
In my view the trial judge had ample evidence upon which to find that Ms. H. was a voluntary patient within the meaning of the Act of 2001 between 10th and 22nd December, 2008, in circumstances where Dr. Freyne, as treating specialist, gave evidence on affidavit to that effect and was not cross-examined about her opinion at that time. That finding is sufficient in itself to dispose of this matter, but I would add that, even had I taken a different view of the status of E. H. as of 22nd December, 2008, I would have arrived at no different conclusion. That is because the certification of grounds justifying the detention of the applicant in St. Vincent’s Hospital is the renewal order made on 9th April, 2009, an order against which no challenge of any sort has been brought. I agree with the conclusion arrived at by the learned trial judge that the admission order made on 23rd December, 2008 pursuant to s.24(3) of the Act of 2001 was in all respects valid. To the extent that the applicant was at any time denied the benefit of certain procedural protections, it is absurd and unreal to suggest that she was removed at any point from the protection of the Act of 2001. Indeed, as noted by O’Neill J., the first named respondent maintained a very high level of supervision of the applicant’s condition and was at all times poised to reinstate her status as an involuntary patient when in her judgement it was appropriate to do so. Accordingly, the protection of the procedural requirements of the Act of 2001, even if suspended for a short period of time, was fully restored to the applicant as a result of the admission order made on 22nd December, 2008.
I am also entirely satisfied that this appeal is a moot. I do not believe any domino effect applies. A similar contention to that made in this case was advanced in Cudden v. The Clinical Director of St. Brigid’s Hospital (Unreported, Supreme Court, 13th March, 2009), a case in which the legality of a patient’s detention was challenged on the basis that his arrest under s. 12 of the Act of 2001 was itself unlawful. In the course of his judgment, Hardiman J. stated at p.6:-
We are aware also of the judgment of the former Mr. Justice Costello P. condemning the procedures formerly in force in this jurisdiction and mandating the establishment of a firm scheme or regime of protection. But this is not a case which calls for protection under Article 40 of the Constitution. The scheme of Article 40 is that the court orders the person detaining to certify, and in this case she did so certify, reliance on the admission order. The obligation of the court, this court or the High Court, when these things are done, is that we must order the release of such a person from detention unless satisfied that he/she is being detained in accordance with law. The position in this case is that we are satisfied that she is being detained as of today and was when the case was before the High Court being detained in accordance with law, and therefore we will decline to order the release.’
E. H. is a person suffering from a mental disorder. It is not contested that E. H. is a person whose mental disorder requires that she be detained for treatment in hospital. It is not contested, even by her own medical expert, that the clinical and nursing staff of St. Vincent’s University Hospital, St. Michael’s Hospital Dun Laoghaire, and the Health Service Executive’s Community Care Team have at all times acted in the best interests of E. H. within the meaning of s.4 of the Mental Health Act, 2001. Finally, it is not contested that any procedural irregularity has attended the various orders detaining E. H. from 22nd December, 2008.
These proceedings were initiated and maintained on purely technical and unmeritorious grounds. It is difficult to see in what way they advanced the interests of the applicant who patently is in need of psychiatric care. The fact that s. 17 (1) (b) of the Act of 2001 provides for the assignment by the Commission of a legal representative for a patient following the making of an admission order or a renewal order should not give rise to an assumption that a legal challenge to that patient’s detention is warranted unless the best interests of the patient so demand. Mere technical defects, without more, in a patient’s detention should not give rise to a rush to court, notably where any such defect can or has been cured – as in the present case. Only in cases where there had been a gross abuse of power or default of fundamental requirements would a defect in an earlier period of detention justify release from a later one. As O’Higgins C.J. observed in State (McDonagh) v. Frawley  I.R. 131 at 136:-