F -v- Clinical Director of St Ita's Hospital, High Court,Judgment given by Mr Justice O'Keeffe on May 21st, 2009
Judgment
Those working for a company engaged by St Ita’s Hospital to carry out an assisted admission of a person suffering from a mental illness were not staff of the hospital, and therefore were not “members of staff of the approved centre” within the meaning of the Mental Health Act 2001.
Background
The applicant in the case was a woman, EF, whose brother had sought a recommendation that she be admitted involuntarily to an approved centre. A GP made such a recommendation, and an involuntary admission order was signed by Dr Malcolm Garland, a consultant psychiatrist in St Ita’s hospital, Portrane.
The applicant gave evidence that she had been forcibly detained on the evening of April 24th, 2007, after leaving a restaurant in Howth, was “bundled” and “manhandled” into a car, being bruised as a result, and removed to St Ita’s. She said the individuals responsible did not identify themselves, and she did not know who they were. It was never explained to her where she was being taken, and why. Her solicitor commented that the experience was traumatic for her.
A Mental Health Tribunal hearing was held on May 11th, where her solicitor raised questions as to who had been responsible for the physical removal of the applicant to the hospital, but at this stage did not get a definitive answer, though it was suggested that “Assisted Admissions” were responsible, but this was not confirmed.
The solicitor said this was the first time she became aware of the possible involvement of persons who might not be members of the staff of the approved centre, as provided for in the Act. The admission order for the applicant was affirmed by the tribunal.
The solicitor continued to inquire as to who had been involved in the admission. Dr Richard Blennerhassett of the hospital explained that the assistant director of nursing followed procedures that had been put in place by the HSE for the use of an assisted admissions service provided by a company called Nationwide Health Solutions Ltd.
On the date in question a risk assessment tool, along with a request for assisted admissions, was faxed to this company. The applicant arrived at St Ita’s hospital at 8.15 that evening, accompanied by a Nationwide Health Solutions team led by its team leader, Jim Neville.
The Mental Health Commission informed the applicant’s solicitor that the HSE had tendered for proposals for an assisted admissions service for the mental health service in 2006.
The applicant then took judicial review proceedings seeking declarations, including that her removal had been otherwise than in accordance with the provisions of the Mental Health Act of 2001, and that it was carried out in breach of her constitutional rights and rights under the European Convention on Human Rights.
The hospital argued that she had not acted promptly in taking the proceedings.
It also argued that the proceedings were now moot, as she was no longer detained.
Counsel for the hospital also argued that the actions taken by the hospital were within the terms of the Mental Health Act 2001, and that the team who had brought the applicant to the hospital were the staff of the hospital within the meaning of the Act.
Anthony Leahy of the HSE explained the circumstances in which Nationwide Health Solutions had become involved in assisting the transfer of persons with a mental disorder to hospital for treatment.
There had been a number of incidents where HSE staff were seriously injured when assisting in the removal of persons, and a working group had been set up to consider the whole question of assisted removals to hospital. It recommended a compensation scheme for health service personnel injured during such work, but such a scheme had not been set up. As an interim arrangement, the HSE had entered into an arrangement with Nationwide Health Solutions to provide suitably qualified and experienced personnel to provide assisted admissions.
He said he believed the term “staff” in this context meant a person under the continuous command and control of the hospital in relation to the work or service they were doing for the hospital. The assisted admissions procedure was a carefully planned and risk-assessed one, and there was a senior HSE executive in continuous command and control throughout.
In consultation with the director of the hospital or a consultant psychiatrist, the assistant director of nursing in St Ita’s put an appropriate team of health personnel together to complete an assisted admission, which in this instance included a team from Nationwide Health Solutions, three of whom were qualified psychiatric nurses. At all times the assistant director of nursing was in continuous contact with all the personnel involved in the removal of the person.
Counsel for the applicant said that the “assisted admissions service” personnel provided by Nationwide Health Solutions Ltd appeared to constitute an independent private contracting entity, and none of its members constituted “staff” of St Ita’s within the ordinary understanding of the term.
The 2006 Regulations made subsequent to the Mental Health Act 2001 specified the suitability requirements for staff at approved centres. If the hospital did not know the identity of the persons engaged in the assisted removal of the applicant, it was difficult to say that there had been conformity with the regulations.
Counsel for the hospital said that the effect of the applicant’s submissions were that the Act was unworkable. He submitted that the Act did not define the term “staff” in its provisions, and that the three psychiatric nurses were “staff” within the meaning of the Act. The absence of a definition was intended by the Oireachtas, and the term is a broad one.
Decision
Mr Justice O’Keeffe concluded the applicant had acted promptly in bringing the application, once she had been provided with the information she required.
Referring to the issue of whether the Nationwide Health Solutions personnel were “staff”, he said no written contract had been exhibited between this company and the HSE or St Ita’s. “It appears that the identity or qualification of the personnel engaged or assisted (otherwise than that of John [sic] Neville) were unknown in advance to the respondent, and indeed it took some time before their identities were revealed to the applicant in these proceedings,” he said.
“The Protocol for Assisted Admissions . . . appears to be drafted on the basis that a senior nurse manager will have responsibility for assigning nursing staff to carry out the procedures . . . It is not drafted on the basis of dealing with the engagement of personnel from Nationwide Health Solutions.
“In my opinion, the meaning of who is ‘a member of staff’ is confined to an individual. A corporate entity such as Nationwide Health Solutions could not be a member of staff.
“In my opinion, the nurses and staff provided by Nationwide Health Solutions were at all material times staff of that entity and were not staff of St Ita’s Hospital.”
He said he was prepared to grant a declaration, and did not believe that the applicant’s case was moot, and a decision could be to her benefit should circumstances arise in the future.
The full judgment is on www.courts.ie.
The Act was subsequently amended.
Feicin McDonagh SC and Niall Nolan BL, instructed by Shalom Binchy Co, for the applicant; Felix McEnroy SC and Carmel Steward BL, instructed by BCM Hanby Wallace, for the respondent