Ireland: Court Uses Inherent Jurisdiction To Make "Rare And Exceptional" Detention Order

The High Court recently used its inherent jurisdiction to make an order for the transfer of a 45-year old woman in need of special therapeutic and welfare services from an approved centre to an unapproved care facility in circumstances where a lacuna in the Mental Health Act 2001 (the "2001 Act") meant that no order could be made under the 2001 Act ( see Judgment here).

When the HSE's application came before the High Court in December 2014, the woman in question, Ms F, was being detained at St Brigid's Hospital, Ardee, Co Louth pursuant to a renewal order made under the 2001 Act. The renewal order was due to expire on 10 December 2014.

The HSE sought an order providing for the transfer of Ms F to the Nua Health Centre on the grounds that her underlying conditions were not being suitably addressed at St Brigid's Hospital. All the doctors who had reviewed Ms F agreed that a transfer to the Nua Health Centre was in her best interests. The difficulty, however, was that the 2001 Act only provides for the transfer of patients to an "approved centre" and the Nua Health Centre is not an "approved centre" under the Act.

BACKGROUND

Ms F had a troubled background, which involved several suicide attempts, persistent alcohol abuse and admissions to alcohol and rehabilitation programmes. In 2009, she was hospitalised for 10 weeks with a condition brought on by her alcohol misuse. She continued to abuse alcohol and became aggressive, confrontational and violent towards her parents and others. Though she left the family home on her parents' request, Ms F was incapable of looking after herself, had poor hygiene and was incontinent at times. There were further suicide attempts and she was admitted to psychiatric hospital on a number of occasions.

In March 2014, she was accepted as an involuntary patient in St Brigid's Hospital. While there she was involved in numerous clashes with fellow patients and members of staff and had to be placed in a seclusion room on at least two occasions.

CONSULTANT PSYCHIATRIST

A consultant psychiatrist who examined Ms F concluded that she suffered from an acquired brain injury, which was a result of her alcohol misuse over the years. It was his opinion that she lacked capacity to make decisions concerning her care and welfare and that she did not have the competence to look after herself or to be maintained safely in the community. He was of the view that a residential placement, such as that available at the Nua Health Centre, was best suited to her complex needs. All the medical personnel who reviewed Ms F's case shared a similar view.

CAPACITY

McDermott J was satisfied, on the balance of probabilities, that Ms F did not have the capacity to decide essential life matters for herself. He found that she was totally incapable of independent living, of looking after herself or providing for her basic needs.

MENTAL HEALTH ACT

Section 8 of the 2001 Act provides that a person may be involuntarily admitted to an approved centre and detained there on the grounds that she is suffering from a mental disorder. Sections 20 and 21 of that Act provide for the transfer of a patient to another approved centre in certain circumstances. However, the difficulty in this case was that the Nua Health Centre is not an approved centre under the 2001 Act.

Under section 22 of the Act, a clinical director of an approved centre may arrange for the transfer of a patient for treatment to a hospital or other place and for her detention there for that purpose. The duration of the detention in the hospital or other place may only be for so long as is necessary for the purposes of the treatment and the patient must then be taken back to the approved centre from which she was transferred. The Court noted that this section clearly contemplates the return of the patient to the approved centre and does not provide for the transfer of a patient to an unapproved centre for an unspecified period. The Court stated that it would be wholly incompatible with the statutory scheme if a patient could be removed from an approved centre for an extended period of time or for the whole or part of the period of the detention order, and detained in an unapproved centre for treatment in respect of a mental disorder. Therefore, this section could not be relied on.

INHERENT JURISDICTION OF THE COURT

McDermott J noted that it was unlikely that a further detention order would be made in respect of Ms F on expiry of the renewal order on 10 December 2014. This meant that after 10 December 2014 there would be no legal mechanism in place whereby Ms F could be lawfully detained in St Brigid's in order to receive the treatment, care and attention necessary to ensure her continued welfare and safety. The Court also noted that the length of the transfer proposed in Ms F's case would probably be lifelong. The Court further noted that all the doctors who had examined Ms F agreed that any order which might be made should include a coercive element depriving Ms F of her liberty.

The Court was not satisfied that the provisions of the 2001 Act could be used to effect Ms F's transfer. However, McDermott J noted that a failure to detain Ms F would result in a real and substantial risk to her health, safety and life which would be entirely contrary to her best interests and welfare. In such circumstances, the Court was satisfied that the inherent jurisdiction of the Court could be invoked in order to facilitate Ms F's transfer from St Brigid's to the Nua Health Centre.

DEPRIVATION OF LIBERTY

McDermott J stated that a balance had to be struck between Ms F's right to personal liberty and the danger posed by her condition to her own life and personal safety, and that of others.

He accepted that there was overwhelming evidence that Ms F's return to the community would pose a threat to her life and personal safety and that it was essential, due to her complete inability to take care of her most basic needs, that she be placed in a secure unit. He noted that each of the doctors who had reviewed Ms F were satisfied that there was no less restrictive way of ensuring her life, safety and health than by placing her in a secure unit. In such circumstances, he considered that the order sought was proportionate.

EUROPEAN CONVENTION ON HUMAN RIGHTS

The Court noted that it was clear from the case law of the European Court of Human Rights that an individual cannot be deprived of her liberty unless (i) she is of unsound mind; (ii) the mental disorder is of a kind or degree that warrants compulsory confinement; and (iii) the validity of the continued confinement is dependent on the persistence of the disorder or unsoundness of mind.

McDermott J was satisfied that the making of the order sought in this case would not infringe Ms F's right to liberty under Article 5 of the European Convention on Human Rights which guarantees the right to liberty. However, he stated that it was imperative that her continued detention in the Nua Health Centre be reviewed at regular and short intervals.

DECISION

The Court decided to grant the declarations sought by the HSE and the relevant ancillary orders required in order to ensure Ms F obtained appropriate care and attention in a secure unit. McDermott J directed that a review of Ms F's detention and treatment in the Nua Health Centre be carried out shortly after her transfer and that periodic reviews be carried out thereafter. He also emphasised that the order was not being made as a matter of course and that it was a "rare and exceptional" order.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.