High Court dismisses detention as invalid due to failure to conduct mandatory prior examination under Mental Health Act 2001.

Neutral Citation [2013] IEHC 132

THE HIGH COURT

[2013 No. 495 S.S.]

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

S.O.

APPLICANT

AND

CLINICAL DIRECTOR OF THE ADELAIDE AND MEATH HOSPITAL OF TALLAGHT

RESPONDENT

JUDGMENT of Mr. Justice Hogan delivered on the 25th March, 2013

1. The case-law which has followed the enactment of the Mental Health Act 2001 (“the Act of 2001”) has endeavoured to strike a

balance between the need to protect rights to personal liberty, due process and the rule of law on the one hand and the effective

protection of the mentally ill, medical professionals and the patients’ family and friends on the other. It is not an easy balance to

strike. If the courts veer in the direction of the paternalistic protection of the patient, important safeguards might suffer erosion over

time to the point whereby the effective protection of the rule of law might be compromised. Yet, if on the other hand, the courts

maintain an ultra-zealous attitude to questions of legality and insist on punctilious adherence to every statutory formality, the might

lead to the annulment of otherwise perfectly sound admission decisions, sometimes perhaps years after the original decision has been

taken.

2. The present case may be thought to provide a paradigm example of this dilemma. There is no doubt at all but that the applicant,

Mr. O., suffers from psychiatric illness and is in urgent need of psychiatric care. Yet the manner in which he came to be involuntarily

detained in the early evening of 8th March, 2013, raises significant questions regarding the operation of the 2001 Act.

3. Mr. O. has been a patient of Dr. C., a registered medical practitioner since June, 2009. During that time it is clear that he has

required on-going psychiatric assessment and monitoring, for much of the time he has suffered obsessive delusions regarding the

conduct of a former employer.

4. Matters came to a head, however, on the 8th March, 2013. On that day Dr. C met with Mr. O’s brother and mother at his surgery.

They both recounted how Mr. O’s behaviour had markedly deteriorated in recent days. He had begun to sleep with his head wrapped

in tinfoil and lately kept a hammer beside his side or under the bed. Other family members feared for their safety and all expressed

concern regarding the paranoid delusional thinking which was dominating Mr. O.’s chain of thought. Mr. O.’s brother then replayed to

Dr. C. a tape recording of a conversation he had with him the previous day. This tape recording served to corroborate the fears which

had already been expressed by these family members.

5. In a very considered letter which Dr. C. sent to Mr. O.’s solicitors on 12th March, 2013, at their request, he explained what had

happened next:

“Based on all of the above and out of concern for the possibility that [Mr. O.] may potentially abscond should he see me

and given my long standing and extensive knowledge of [Mr. O.’s] history, I proceeded to sign the Form 5 recommending

[his] involuntary admission to an approved psychiatric unit.”

6. Mr. O. was later removed to the respondent hospital later that day. He was received into the hospital just before 7pm and was

examined on the following morning. The admission order describes his mental condition as:-

“Persecutory delusions. Aggressive and homicidal. In the context of same, no insight. Wishes to leave hospital.”

7. No issue has been raised as such concerning his examination or subsequent treatment in hospital. What is instead at issue is

whether the applicant’s admission is lawful by reason of the fact that no actual examination was conducted by Dr. C. prior to the

making of a recommendation for his admission.

8. The entire premise of s. 14 of the 2001 Act is that no person may be involuntarily detained in psychiatric hospital without a prior

“recommendation” from a registered medical practitioner. Section 10(1) of the 2001 Act further re-inforces this by providing that:-

“Where a registered medical practitioner is satisfied following an examination of the person the subject of the application

that the person is suffering from a mental disorder, he or she shall make a recommendation (in this Act referred to as “a

recommendation”) in a form specified by the Commission that the person be involuntarily admitted to an approved centre

(other than the Central Mental Hospital) specified by him or her in the recommendation.”

9. Section 1(1) provides that the word “recommendation” shall be construed in accordance with section 10. But the medical

practitioner cannot be “satisfied” to make a recommendation unless there has been a prior examination of the patient. Section 10(2)

further stipulates that the examination must be carried out within 24 hours of the receipt of the application.

10. Section 1(1) of the Act of 2001 defines “examination” as meaning in relation to a “recommendation, admission order or a renewal

order” a:-

“personal examination carried out by a registered medical practitioner or a consultant psychiatrist of the process and

content of thought, the mood and the behaviour of the person concerned”.

11. It is plain that no such examination was conducted of Mr. O. by Dr. C. within the 24 hour period prior to the making of a

recommendation. In making this observation, I would also add that Dr. C. deserves only great personal praise for the kindly, careful

and considerate way in which he handled this very difficult situation. I am nonetheless driven to the conclusion that the failure to

conduct an examination rendered the subsequent involuntary detention of the applicant unlawful.

12. The Oireachtas clearly envisaged that no person should be involuntarily admitted to a mental hospital save on the

recommendation of a registered medical practitioner. That recommendation in turn had to be preceded by an “examination” of the

patient within the 24 hour period. These were deemed to be vital essential safeguards for the patient.

13. Further evidence of this is provided by s. 12 itself. This section provides for an arrest of person who a member of An Garda

Siochána has “reasonable grounds” for believing that the person is suffering from a mental disorder and that there is a “serious

likelihood” of the persons concerned causing immediate and serious harm to himself or others. Where this occurs, the member must

forthwith apply to a registered medical practitioner for a recommendation. If, however, no such recommendation is made, the person

concerned must then be released immediately: see s. 12(4). If, however, a patient was to be arrested under s. 12 by a member of An

Garda Síochána and conveyed directly to a psychiatric hospital without any such recommendation from a registered medical

practitioner, could it be suggested that any subsequent admissions order was nonetheless valid?

14. It is true that the recent case-law indicates that non-compliance with some of the protections contained in the 2001 Act will not

render invalid a subsequent valid order, such as an admissions order: see the judgment of Feeney J. in L. v. Clincial Director of St.

Brendan’s Hospital [2008] IEHC 11 and that of Hardiman J. for the Supreme Court in L., delivered on 15th February, 2008.

15. In L. the suggestion was made that the initial arrest of the patient under s.13 was invalid, but it was held by both this Court and

the Supreme Court that even if that were so, this did not affect the validity of the admission order under s. 14. As Feeney J.

observed:-

“Section 14 is not dependent upon how a person arrived at an approved centre, the word used in the section is the word

‘received’…An admissions order is a separate and stand-alone matter….The facts herein demonstrate the very limited

nature of the alleged wrong. There is no evidence before the Court that the suggested breaches in relation to s.13 were

made other than in good faith. In this instance any wrong which might potentially have been done to this applicant is

cured by the complete and proper implementation of the provisions in relation to the admissions order…”

16. The Supreme Court took a similar view on appeal, with Hardiman J. observing that even “assuming the breaches of s. 13 to have

occurred, we see no reason to believe that it would invalidate the making of an admission order under s. 14.” Section 13 deals,

however, simply with the method whereby patients in respect of whom a recommendation has been already made may be removed to

the approved centre. While an important safeguard, it could not be said that s. 13 is as vital and critical to the orderly operation of

the admissions procedure as is the necessity for a prior recommendation by a registered medical practitioner based on an actual

examination of the patient.

17. The approach taken in L. is also evident in the approach taken by Kearns J. in EH v. Clinical Director of St. Vincent’s Hospital

[2009] IESC 46, [2009] 3 I.R. 771. In that case a patient who was not involuntarily detained was so detained when she sought to

leave the psychiatric unit. An otherwise valid admission order was subsequently made. The Supreme Court held that even if the initial

detention was invalid, this was cured by the subsequent admissions order. Kearns J. went on to say ([2009] 3 I.R. 771, 792):-

“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.”

18. These words have given me pause for thought. The applicant here is certainly in need of psychiatric care and all the evidence is

that the medical professionals and his family have striven to care for him under exceedingly difficult circumstances. Yet I find myself

obliged to conclude that there was a default of fundamental requirements in that the applicant was not examined at all in the manner

required by s. 10 by the registered medical practitioner in the twenty-four hour period prior to the making of the recommendation.

19. In this respect, the present case is different from both MZ v. Khattak [2008] IEHC 262, [2009] 1 I.R. 417 and XY v. Clinical

Director of St. Patrick’s University Hospital [2012] IEHC 224. In MZ Peart J. held – albeit with understandable reluctance and unease -

that an informal conversation between a registered medical practitioner of some experience and a patient at the rear of a Garda

station constituted an “examination” of the patient for the purposes of s. 10. One might say that this was a case where the

detention order was not invalid because the examination requirements had, at least, been substantially complied with, even if the

manner and nature of the examination had been somewhat unconventional.

20. In XY I did not find it necessary to reach a concluded view on the question of whether the observation of the patient from a

short distance by a medical practitioner in a car park constituted an “examination” in this sense, because even if there had not been

such an examination in the statutory sense of that term, any invalidity had been cured by the subsequent admissions order:-

“The reasoning in L. clearly applies by analogy to the present case. If - as I have held - a valid admission order was made

by Dr. O'Ceallaigh following an examination of Ms. Y. under s.14, then it is immaterial so far as the continued validity of

the detention under that admission order is concerned that the requirements of s. 10 were not perfectly complied with by

the registered medical practitioner concerned.”

21. The true ratio of XY, accordingly, is that an incidental invalidity in the examination process will not render invalid an otherwise

valid admissions order which was subsequently made thereafter. In other words, the mere fact that the medical practitioner had not

“perfectly” complied with the requirements of s. 10 will not suffice to render the detention invalid. It was clear in that case that at

least such had been attempted and it was essentially for those reasons that I concluded that the detention was not invalid. In those

circumstances it was therefore unnecessary to determine whether there had been full or perfect compliance with the requirements of

s. 10 so that what had occurred could properly be described as an “examination” of the patient.

22. The essential point of difference, therefore, between this case and XY is that in the latter case the medical practitioner at least

endeavoured – again under exceedingly difficult circumstances – to examine the patient, whereas (for perfectly understandable

reasons) this was not attempted here. It is rather the complete failure to comply with the requirement of s. 10 that there be a prior

examination which renders invalid the subsequent admissions order. There is accordingly here a default of fundamental requirements in

the sense canvassed by Kearns J. in EH. If it were otherwise, it would mean that a patient could be validly admitted on an involuntary

basis without the necessity for an examination within the previous 24 hour period or even, perhaps, without a recommendation at all.

If this were so, it would entirely set at naught the safeguards deemed to be fundamental by the Oireachtas.

23. In so far as any dicta of mine XY suggested that any defect whatever attaching to the s. 10(1) examination procedure could

subsequently be automatically cured by a valid admissions order, I think that these should stand qualified in the light of the present

case.

24. One cannot again but sympathise with the position of Dr. C. and members of Mr. O.’s family. Perhaps the solution is very difficult

cases of this kind is that the patient might first be arrested by a member of An Garda Síochána in accordance with s. 12 of the 2001

Act and then examined by the registered medical practitioner prior to the making of a recommendation: see s. 12(2) and s. 12(3) of

the 2001 Act.

Conclusions

25. In the event, therefore, I find myself coerced to the conclusion that the validity of the admissions order was tainted by the

fundamental failure to comply with the procedural obligations in relation to an examination contained in s.10. It follows, therefore,

that the present detention of the applicant is not in accordance with law. I will hear counsel on what further steps should now be

taken.