EH -v- St Vincent's Hospital Ors - SUPREME COURT:Judgment was given by Mr Justice Kearns on May 28th, 2009, the Chief Justice, Mr Justice Murray, Mr Justice Fennelly, Ms Justice Macken and Mr Justice Finnegan concurring.
JUDGMENT
Proceedings taken against the detention of a woman suffering for a mental disorder were taken on purely technical and unmeritorious grounds, and an appeal against High Court ruling that the detention was lawful was dismissed.
BACKGROUND
EH is a single women aged 69, who lived alone in south county Dublin. Her only close relative is a brother also living in Dublin.
In May 2008 she was treated in St Vincent’s Hospital for a broken leg. Those treating her noticed she appeared to be paranoid and was refusing treatment, and she was referred to a consultant psychiatrist, Dr Aideen Freyne, who concluded she was suffering from a psychiatric disorder. She prescribed anti-psychotic medication. Her illness was exemplified by her belief that she had inherited a substantial cash fortune and needed to spend the money to save Dún Laoghaire Harbour.
On June 3rd she was admitted to the psychiatric unit in St Vincent’s as an involuntary patient as she was not accepting medical treatment in the medical ward and was refusing food and drink. She was discharged on June 30th with a discharge plan which included support from her brother who had been involved in her care and welfare.
However, she refused to co-operate with the discharge plan and stopped taking her medication. When health personnel called to her home on July 17th they found her seriously ill and almost unconscious, suffering from a kidney infection and dehydrated. She was removed to St Michael’s Hospital in Dún Laoghaire, where she was assessed by a psychiatrist and transferred back to the psychiatric unit in St Vincent’s. The admission order was affirmed by a Mental Health Tribunal on August 25th, 2008, which was renewed on September 10th.
An indication of her state of health was indicated by the fact that when she left hospital at the end of June she weighed 51.9kg, slightly below average, but when readmitted weighed 41.2kg, seriously underweight and indicative of self-neglect.
She was noted to be depressed and suffer from mood-swings indicative of a bi-polar disorder, as well as symptoms suggesting dementia. A CT scan indicated lack of oxygen to the brain and her performance in cognitive testing was fluctuating.
On December 10th the renewal order was revoked by the Mental Health Tribunal because a date had been left out of a renewal form. This was explained to Ms H who agreed to stay in the unit until her brother came to collect her at a future date. However, she did not sign the voluntary admission form and the hospital records indicate she lacked the capacity to sign because of her dementia and mental illness.
On December 22nd she attempted to leave the unit and the procedures under section 23 and 24 of the Act were invoked, providing for her detention and enabling ongoing treatment to be provided. The involuntary detention was reviewed by the Mental Health Tribunal on January 9th, 2009, and the admission order of December 22nd affirmed. She continues to be detained on foot of a further renewal order, and continues to improve.
Counsel for Ms H, John Rogers SC, contended that she was not a voluntary patient from December 10th to 22nd, as her mental condition precluded her from giving her consent, and when she tried to leave on December 22nd, she was prevented from doing so. Subsequent orders made to detain her were tainted by the irregularity of her detention during this period.
Counsel for the hospital, Felix McEnroy SC, said that an inquiry under article 40.4.2 of the Constitution, such as this, existed to determine only whether at the time of the hearing a person was in unlawful detention. At the time the application was made the detention complained of had come to an end, and the application was therefore moot.
Peter Finlay, SC, for the Mental Health Tribunal, said that the contention put forward on behalf of the applicant was contrary to the scheme and spirit of the 2001 Mental Health Act, which had a paternalistic and protective character.
DECISION
Mr Justice Kearns said that the Act was designed with the best interests of persons with mental disorder in mind. In relation to the question of whether Ms EH was a “voluntary patient”, he quoted from the judgment of Mr Justice O’Neill in the High Court, where he was satisfied that the definition of voluntary patient in the Act, as one receiving care and attention who is not the subject of an admission order, was consistent with the Constitution. He had also said that even if her detention between December 10th and 22nd was illegal, that situation was brought to an end by the subsequent use of the statutory provisions.
He said he had a difficulty in reconciling the assertions of counsel for the applicant that she was unable to give consent to her detention with his contradictory assertion that she was able to instruct her 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,” he said. “Any interpretation of the term in the Act must be informed by the overall scheme and paternalistic intent of the legislation,” he said.
There was ample evidence for the High Court finding that Ms H was a voluntary patient during the time in question, including the testimony of her consultant psychiatrist, who was not cross-examined. That finding was of itself sufficient to dispose of the matter, but Mr Justice Kearns said that, even if he was of a different view, the certification of grounds justifying the detention was the renewal order made on April 9th, against which no sort of challenge had been brought.
He said he was also satisfied the appeal was moot, and was such from December 22nd 2008.
“I can see no justification whatsoever for the bringing or maintenance of this appeal following the rulings delivered by this Court in both the RL case and the Cudden case, which effectively put paid to any suggestion that a domino effect or theory of infection applied to cases of this nature,” he said.
He said it was not contested that Ms H suffered from a mental disorder, and that all the medical staff involved had at all times acted in her best interests. Nor was it contested that any procedural irregularity attended the various orders detaining her.
“These proceedings were initiated and maintained on purely technical and unmeritorious grounds,” he said. “It is difficult to see in what way they advanced the interests of the applicant who patently is in need of psychiatric care.”
He said that the fact that section 17 of the Act provides for the assignment by the Mental Health Commission of a legal representative for a patient following the making of an admission order should not give rise to an assumption that a legal challenge to that patient’s detention was warranted unless the best interests of the patient demanded it. “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.”
He dismissed the appeal.
John Rogers SC and Patricia Hill BL, instructed by St John Solrs, for the applicant; Felix McEnroy SC and James McDermott BL, instructed by BCM Hanby Wallace, for the hospital and Dr Freyne; Peter Finlay SC and Donal McGuinness BL, instructed by Arthur Cox and Co, for the Mental Health Commission;
Full judgment on www.courts.ie