Themes from Recent Mental Health

Case-Law

Darius Whelan

UCC MentalHealth Law Conference

26 Feb. 2010

Legal challenges only to be made if in patient’s best interests?

Voluntary Patients Removals to Approved Centres Power of Garda Lack of interview by independent psychiatrist of

responsible psychiatrist Burden of Proof Appeals to Circuit Court Reviews if Order already revoked Re-admission soon after discharge by MHT2

Mental Health Commission Summary

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Summary of Judgments delivered by the Superior Courts on the Interpretation of the Mental Health Act 2001 www.bit.ly/mhc-15

Legal challenges only to be made if in patient’s best interests?

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The fact that s.17 of the 2001 Act provides for the assignment …of a legal representative for a patient …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 demandE.H. v Clinical Director of St. Vincent's Hospital (2009)

Kearns J.

Voluntary Patients

E.H. v St. Vincent’s (2009)

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Patient initially admitted on involuntary basis, then remained in centre after involuntary detention ended

12 days of detention in issue (Dec. 10-22)Supreme Court – Patient was “voluntary” within

meaning of s.2 of 2001 Act during that periodAct merely requires that person be receiving care

and treatment in the approved centreKearns J.: H.L. v UK not relevant as in that case

the patient was voluntary at the outset

M.McN. V Health Service Executive (2009)

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Very similar to E.H. CasePeart J. also emphasised hospital’s duty of

care:It would be grossly negligent for the

hospital to bring patients to front door of hospital and say “off you go”

Doors could be locked for safety of patients

H.L. v UK was different as L. had been admitted on voluntary basis at outset

Removals to Approved Centres

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S.13If applicant unable to arrange person’s removal

to approved centre, doctor may request clinical director to arrange for removal by approved centre staff [or by authorised persons]Reference to authorised persons added by s.63

Health (Miscellaneous Provisions) Act 2009 Known as “assisted admission”

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R.L. v St. Brendan’s (2008) Supreme CourtApplication under Art.40.4 of Constitution

If s.13 had been breached by use of independent contractors, later detention would still be lawful.

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E.F. v St. Ita’s (2009) O’Keeffe J.Judicial ReviewJudgment 2 years after removalRemoval was effected by independent contractors – Nationwide Health Solutions Ltd.

O’Keeffe J. declared that 2001 Act had been breached

Led to 2009 amendment of Act (see previous slide)

Power of Garda

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S.12 – Garda may take person into custody if has reasonable grounds for believing person has Mental Disorder and there is serious likelihood of serious harm to self/others(Note harm ground only –

“need for treatment” ground cannot be used)

He/she or another Garda must apply forthwith to a doctor for a recommendation

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M.Z. v Khattak (2008) Peart J. Applicant had been taken into custody by Garda under s.12 but application for admission made by brother

Held lawful. Application commenced fresh procedure under s.9.

F.W. v James Connolly Hospital (2008) Hedigan J. Detention by Gardaí made on being phoned by psychiatrist

Held lawful

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S.C. v St. Brigid’s (2009) Dunne J.Gardaí took applicant into custody under s.12

Psychiatrist later detained under “need for treatment” ground rather than “harm ground”

Detention held lawful. Gardai had reasonable grounds.

Lack of interview by independent psychiatrist of responsible psychiatrist

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S.17 – Independent psychiatrist must interview responsible consultant psychiatrist (RCP)

D. v HSE [2009] IEHC 488 Independent psychiatrist attempted to telephone

psychiatrist at centre but got no answer; he was told that she was ill

MHT was informed of this but decided that, as it had no doubt as to patient’s mental disorder, detention would be affirmed

Peart J. - Failure to interview the RCP before submitting report to tribunal was not such as to render report invalid for purpose of s. 17

Defect in report is not so fundamental as to invalidate report to extent that the tribunal could not be entitled to have regard to it.

Burden of Proof

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Act does not deal specifically with question of burden of proof

Act states Mental Health Tribunal must be satisfied of certain matters if it is to affirm order

Arguable s.18 effectively places burden of proof on approved centre to show that patient’s detention is justified.

If patient presented no evidence, his/her detention could not be continued unless evidence from hospital justifying detention

However, there will be an independent psychiatrist’s report, and so even if patient chose not to participate, MHT could detain him/her if psychiatrist’s report provided sufficient grounds

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English legislation required patients seeking discharge to demonstrate to the tribunal that they did not meet the standard of confinement (s.72(1)(b) MHA ’83)

English courts held s.72(1)(b) was incompatible with the European Convention R v MHRT N & E London ex p H (2001)

Mental Health Act 1983 (Remedial) Order 2001: It is for those opposing the discharge to prove, or the tribunal to be satisfied, that the patient is suffering from mental disorder.

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On appeal to Circuit Court: Burden of proof on patient – s.19(4)

Unclear whether this complies with ECHRR v MHRT, N. & E. London, ex parte H. (2001)

Is an appeal stage different from first instance stage?

Reid v UK (2003) – Appeal courts should comply with Art.5(4) See also Toth v Austria (1991); Navarra v

France (1994); Rutten v Netherlands (2001)

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T.S. v Mental Health Tribunal (2008) O’Keeffe J. S.19(4) merely states that appellant must

prove his/her caseHowever, this interpretation is

questionableRe ECHR case-law, O’Keeffe J. stated that

all cases concerned first instance rather than appeals

However, once an appeal is available, the proceedings must ensure equality of arms

Appeals to Circuit Court

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If patient has been released by time of hearing of appeal to Circuit Court, court cannot hear appealHan v President of the

Circuit Court (2008), Charleton J.

Legislative purpose behind s.19 is to allow those patients who are still detained to have the condition of their mental health reviewed before the Circuit Court

Purpose is not to engage in an historical analysis

Reviews if Order already revoked

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If patient discharged before MHT hearing, psychiatrist must notify patient of right to continue review (s.28)

If patient wishes to continue review, he/she must indicate this within 14 days of discharge (16 patients did this in 2007)

Otherwise review will be discontinued

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Unclear what purpose of s.28(5) isCharleton J., obiter, in Han case:

Seems to involve historical review of whether patient had MD when admission order was made

Another issue: how can a patient who lacks capacity decide to seek a review within 14 days?Referred to in passing by Peart J. in M.McN. v HSE

Re-admission soon after discharge by MHT

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C.C. v Clinical Director St. Patrick’s (No.2) (2009) Hedigan J.

5 January – MHT revoked admission order (During tribunal hearing, patient indicated she

would be willing to remain in centre on voluntary basis)

Jan. 15 – Patient re-detained under re-grading procedure in ss.23 & 24.

Hedigan J:A MHT decision is not a bar for some indeterminate

period to bona fide clinical judgements Highly desirable that another tribunal should sit as

soon as possible

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d.whelan@ucc.ie