A 69-YEAR-OLD woman who claims her detention in a psychiatric hospital is unlawful has again asked the High Court to order her release.
The woman brought the action after deciding on January 15th that she no longer wanted to remain as a voluntary patient at the hospital. The hearing of that application continues today.
An earlier challenge by her to an earlier period of detention at the hospital, which began on December 9th after she was arrested by gardaí while out walking with her son and brought by them to the hospital, was dismissed in a separate reserved High Court judgment yesterday.
Her latest action, also for an order under Article 40 of the Constitution that her detention is unlawful, arises from the hospital’s decision that she must remain there after she had decided she no longer wished to be a voluntary patient.
The woman, who has bi-polar disorder, became a voluntary patient after an order committing her involuntarily was revoked on December 19th by order of a Mental Health Tribunal which was set up to deal with her case by the State’s Mental Health Commission.
On Thursday last, she decided she no longer wanted to remain on, but the hospital refused to discharge her because it was not satisfied this would be in her best medical interests. The hospital invoked a provision of the Mental Health Act 2001 giving it power to detain voluntary patients.
The woman claims the hospital has no power to detain her. She claims the tribunal had already found, while she was suffering from mental illness, she was not suffering from a mental “disorder” as required under law before a person can be committed involuntarily.
She also claims the hospital cannot lawfully refuse to release her because, she claims, the consultant psychiatrist who recommended she be detained was not an “independent” doctor as required under the law.
Colman Fitzgerald SC, for the woman, argued yesterday the hospital was not permitted under the 2001 Act to simply ignore a decision of the tribunal discharging her.
In his separate judgment yesterday on the woman’s earlier proceedings, Mr Justice Bryan McMahon dismissed the woman’s claim she was unlawfully detained at the hospital after she was arrested in early December.
The woman had claimed that because she was initially detained by gardaí and unlawfully brought by them to the hospital, this meant her detention there was unlawful.
Mr Justice McMahon noted both the hospital and Mental Health Commission were unaware of what had gone on before she was brought to the hospital on December 9th.
The judge said there was no suggestion the gardaí became involved under the limited powers conferred on them by Sections 12 and 13 of the Mental Health Act 2001 and it appeared the woman was correct in saying neither of those sections would justify the Garda intervention in detaining her. If the gardaí exceeded their powers, it was open to the woman to take separate proceedings against them, the judge said.
The judge said the hospital was unaware of any wrong committed by the gardaí when the woman was presented to it – she was known to the hospital and had a long history of illness.
He said the detention by gardaí did not affect the subsequent process put in motion by the clinical director which resulted in the woman being detained by the gardaí and examined by an independent psychiatrist before being returned to an approved centre where a further admission order was properly made.
The woman was subject of an application properly made by her husband and there was a recommendation from her GP for her involuntary admission in accordance with the 2001 Act, he noted.
He ruled the woman’s detention up to 19th December when the Mental Health Tribunal considered her case was lawful and, given all the facts, the tribunal’s decision that it could not order her release could not be faulted.
The tribunal had no power to order the woman’s release and her lawyers had not availed of its offer to adjourn which would have given an opportunity to apply to the clinical director for her release.
