Clive Gooden (applicant) v Waterford Regional Hospital and St Otteran's Hospital (respondents).

Judicial Review - Voluntary patient - Written notice of intention to leave hospital after expiration of 72 hours - Whether mandatory entitlement to leave - Meaning of "received and detained' - Legality of detention in a psychiatric hospital - Whether in the circumstances there was non-compliance with section 5(3)(a) of the Mental Treatment Act 1953 - Constitution of Ireland, article 40 -- Mental Treatment Acts 1945-1961.

The High Court (before Mr Justice Kelly); judgment delivered 14 December 2000.

Where a voluntary patient in a mental hospital gives written notice of his intention to leave the hospital after the expiration of 72 hours pursuant to the provisions of section 194 of the Mental Treatment Act 1945, a mandatory entitlement to leave arises only in the circumstances where during the 72-hour period no other statutory provisions are utilised by the hospital authorities so as to bring about the compulsory detention of the patient.

Mr Justice Kelly so held in refusing the applicant's application for release from detention.

Michael Counihan SC and Robert O'Neill BL for the applicant; Felix McEnroy SC and David Kennedy BL for the respondents.

Mr Justice Kelly outlined the facts of the case. The applicant in the proceedings was arrested by police following an incident in Waterford on 9 November 2000. While in police custody he described hearing voices in his head. The police took him to St Otteran's Psychiatric Hospital (the hospital) where he was admitted as a voluntary patient. On 10 November he was seen by a consultant psychiatrist, Dr O' Sullivan, who was aware of the applicant's previous history of mental illness. The doctor formed the view that the applicant had suffered a relapse of a schizophrenic condition. Antipsychotic medication was commenced. When seen again by Dr O' Sullivan on 13 November the applicant continued to be deluded but demanded that he leave hospital. He gave written notice that he wished to be discharged from the hospital pursuant to the provisions of section 194 of the Mental Treatment Act 1945 (the Act). This section requires a voluntary patient in a mental hospital to give 72 hours notice of intention to leave hospital. Because of concerns for the applicant's welfare, on 15 November he was jointly assessed by the superintendent community welfare officer for Waterford and a general practitioner. As a result of their assessment they filled out the appropriate form for a temporary patient (chargeable) pursuant to the provisions of section 184 of the Act. On 16 November 2000 Dr O' Sullivan again assessed the applicant and found that he continued to lack insight into his illness and need for medication.

Mr Justice Kelly considered the submissions of counsel for the applicant who argued that the applicant's detention was unlawful for three reasons: (1) that having given notice pursuant to the provisions of section 194 of the Act there was a mandatory obligation to release the applicant after 72 hours had expired from the giving of notice regardless of his state of health; (2) that section 184 speaks of a person being "received and detained" and its terms therefore cannot apply to a person who is in a mental hospital on a voluntary basis; and (3) that because of what occurred in the present case the applicant was deprived of the benefits of Section 5(3) of the Mental Treatment Act 1953 (the 1953 Act). Mr Justice Kelly set out the relevant provisions of the sections relied upon.

Dealing with the applicant's first submission, Mr Justice Kelly said that section 194 of the Act required a voluntary patient in a mental hospital to give 72 hours notice of intention to leave the hospital. The effect of this was that a voluntary patient who wishes to leave a mental hospital may be held for a period of 72 hours after giving notice of his intention to leave. Mr Justice Kelly was of the view that in enacting this provision the Legislature must have had in mind that in an appropriate case the hospital authorities might during that period avail themselves of other statutory provisions so as to ensure that a mentally sick person would not be free to leave hospital thereby placing his welfare and perhaps his life at risk. He therefore rejected the proposition that in all cases where a notice is given under section 194 of the Act there is a mandatory entitlement on the part of the patient to leave the institution at the expiration of the 72-hour period. Such mandatory entitlement only arises in circumstances where during the 72hour period no other efficacious legal steps are taken which entitle the hospital authorities to continue to detain the patient.

Mr Justice Kelly then considered the applicant's second submission regarding the utilisation of section 184 of the Act so as to bring about a compulsory detention, in circumstances where the applicant was already a voluntary patient in the hospital. Mr Justice Kelly was of the opinion that section 184 must be read purposefully in conjunction with section 194. This being the case a voluntary patient may, while in the custody of the hospital, be the subject of a section 184 compulsory detention. Mr Justice Kelly considered that the word "received" in section 184 does not necessarily mean physically received but as in the present case means received as an involuntary patient. He therefore held against the applicant's contention under this heading.

Mr Justice Kelly further rejected the applicant's final submission that because section 184 was utilised in the circumstances outlined that there was non-compliance with the provisions of section 5(3)(a) of the 1953 Act. This section requires the person in charge of a mental institution to whom an application is made to have a person received or detained as a temporary and chargeable patient to inform the person to whom the application relates of the nature of the medical certificate given under section 184 and of the fact that such person may request a second medical examination. Mr Justice Kelly held that the entitlement provided for in this section was not triggered as the applicant was already in the hospital and so it was not necessary to convey him there as is contemplated by section 5(1)(a) of the 1953 Act.

Accordingly Mr Justice Kelly refused the application for release from detention.

In conclusion Mr Justice Kelly further pointed out the desirability for reform of the current legislation, a view previously expressed by the then President of The High Court Mr Justice Costello in R.T. v Director of the Central Mental Hospital & Others (1995) 2 ILRM 354 as approved by Mr Justice Budd in S.C. v Smith & Others (unreported, 31 July 1995).

Solicitors: Brian J. Chesser & Co (Waterford) for the applicant; Nolan Farrell & Goff (Waterford) for the respondents.