Z -v- Khattak & anor: High CourtJudgment delivered by Mr Justice Michael Peart on July 28th, 2008
Judgment
A man with a history of bipolar affective disorder, who was detained in Tallaght hospital following a request from his brother to gardaí to arrange his admission, was legally detained despite certain flaws in the procedure.
Background
The applicant has a history of bipolar affective disorder, and on July 4th he sought to be admitted voluntarily to St Vincent's hospital, Fairview, but was refused as he did not live within its catchment area. This hospital contacted Tallaght hospital, who faxed a letter to Mountjoy Garda station informing them that the man was a patient in Tallaght and if he came to their attention the gardaí should arrange for him to be assessed and transferred to Tallaght.
In the meantime, the applicant's brother contacted a consultant psychiatrist in Tallaght hospital, Dr Yolande Ferguson, and told her the applicant was not taking his medication, was in possession of a samurai sword, and that he (the brother) feared for his safety and that of others.
He also told gardaí in Mountjoy of his concerns, but agreed with them that nothing should be done until the following morning.
On the following morning, July 5th, two members of the force went to the applicant's flat and asked him to accompany them to the station, which he did voluntarily. He sat in the lobby while they contacted a doctor, as required under the Mental Health Act 2001.
Section 12 of that Act provides for the taking into custody of a person where a member of the Garda Síochána has reasonable grounds for believing he or she is suffering from a mental disorder, and there is a serious likelihood of the person doing immediate and serious harm to himself or herself or to other persons.
It also provides that the Garda shall make an application to a medical practitioner for a recommendation and, if and when such a recommendation is made, make arrangements for the transfer of the person to an approved centre.
Section 10 of the Act provides for a medical practitioner to examine a person and make a recommendation that the person be admitted involuntarily to an approved centre. It also lays down conditions for the examination of the person.
The applicant contended that the procedures laid down in these sections, and which led to his detention in Tallaght hospital, were not properly complied with.
The gardaí in Mountjoy contacted a retired GP, Dr W, who told the court he had acted for the gardaí in "thousands of cases".
He had a chat with the applicant at the rear of the Garda station for about 10 minutes while they both smoked a cigarette.
He concluded that he should be in hospital because he was not taking his medication, was elated and paranoid.
He did not take notes of the discussion, and admitted in court that he did not know what a mental state examination might entail. Nor was he familiar with the definition of an "examination" contained in the Mental Health Act.
The application for a recommendation was signed by the applicant's brother (not a member of the Garda Síochána, as required by the Act), and the doctor then signed the recommendation. The doctor told the court he thought that the patient could have signed himself out of hospital if the application was signed by a garda, though this is not the case.
The applicant was brought by ambulance to Tallaght hospital, where he was seen by a junior registrar at about noon, and the senior consultant on call, Dr Khattak, told him by telephone that he should be admitted.
More than seven hours later, the applicant was seen by Dr Khattak, who signed the admission order at 7.30pm on July 5th.
The Mental Health Commission received a copy of this at 4.30pm on July 7th, though the Act requires it to be sent within 24 hours.
The applicant challenged his detention on four grounds: that the application to Dr W for a recommendation was made by his brother, and not by a garda, as required by the legislation, and was therefore invalid; that the type of examination carried out by Dr W did not conform to the type of examination envisaged by the Act; that he was not examined "as soon as may be" by a consultant psychiatrist on his arrival at Tallaght hospital; and that there was a delay in sending a copy of the admission order to the Mental Health Commission.
Decision
In relation to the first ground, Mr Justice Peart said the issue was whether the detention of the applicant was unlawful to the extent of requiring the applicant's release. While acknowledging "a somewhat unusual sequence of events" in the procedure followed, he said: "I am not satisfied that it does."
With regard to the second ground, concerning the doctor's recommendation, he said: "I listened to Dr W's evidence as to the manner in which he conducted his examination of the applicant by having a chat for about 10 minutes outside the back door of the Garda station while he and the applicant smoked their cigarettes with some disquiet. It seems to me to be a too informal manner in which to conduct such an examination, a consequence of which can be that the person is to be detained involuntarily at an approved centre."
However, he added: "One cannot discount completely the possibility that Dr W's 30 years' experience as a general practitioner and his later experience of examining patients in a Garda station enables him to reach the necessary conclusions for the purpose of making this recommendation . . . I cannot doubt the basis on which Dr W made his recommendation."
With regard to the third ground, the seven hours' delay before the applicant was formally admitted by Dr Khattak, he said that, while there was no pressing reason why he could not have arrived earlier, the term in the Act, "as soon as may be", is difficult to interpret precisely, and seemed to permit some latitude. It was not a basis for a finding of unlawful detention.
He found the fourth ground, the delay in sending a copy of the order to the Mental Health Commission, to be a breach of a technical requirement which did not breach any right of the applicant in any fundamental way, or at all.
He was therefore satisfied that the applicant was lawfully detained under the admission order made on July 5th, and refused his application for release.
• The full text of this judgment is on www.courts.ie
Ciarán Craven BL, instructed by Daly, Lynch, Crowe and Morris, for the applicant; Carmel Stewart BL, instructed by BCM Hanley Wallace, for the respondents