The Importance of Section 23 of the Mental Health Act 2001

In AS v The Clinical Director of St. Michael’s Psychiatric Unit and HSE, Mr. Justice Barr of the High Court refused the Applicant leave for Judicial Review of a temporary detention order by a doctor of the Respondent’s Hospital’s Psychiatric unit triggered under Section 23 of the Mental Health Act 2001 (as amended).

In this article Lebeau Jonker, Partner, CKT and Ríona Denys, Intern, CKT give an overview of the case, statutory provision, legal arguments raised and the ruling of Mr Justice Barr of the High Court.

Background

In this case, the applicant was admitted as an inpatient on a voluntary basis to St Michael’s Psychiatric Unit, which he had previously attended in 2012.

Later that night he was detained in the unit. At approximately 02:00, the applicant became agitated and requested to leave the premises following procedural refusals from the staff to have tea, toast or a cigarette at this time of the night.

Pursuant to an assessment interview and examination from the doctor on call, the applicant was sectioned under Section 23 of the 2001 Act.

The Applicant sought before the High Court leave for Judicial Review of the Section 23 Order made by a doctor of the Respondent.

Statutory Provision

Section 23 of the Mental Health Act 2001 (as amended) states as follows:

Section 23: Power to prevent voluntary patient from leaving approved centre.

23.—(1) Where a person (other than a child) who is being treated in an approved centre as a voluntary patient indicates at any time that he or she wishes to leave the approved centre, then, if a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the person is suffering from a mental disorder, he or she may detain the person for a period not exceeding 24 hours or such shorter period as may be prescribed, beginning at the time aforesaid.

Legal Arguments

An Application for leave for Judicial Review essentially provides the Court with an insight of the case as to whether the Applicant has an arguable case grounded on the reliefs sought, which upon determination may be heard at Judicial Review Hearing as established in the case of G v DPP [1994] 1 IR 374.

In light of this, the main issue before Mr. Justice Barr, was the legality of the Order made by the doctor pursuant to Section 23 of the Act.

The Applicant, representing himself, admitted himself to hospital on a voluntary basis and argued that he had a Constitutional Right to liberty to leave the hospital at any time. Additionally, the Applicant raised the issue that the said doctor could not have reasonably formed his opinion of a mental disorder based on previous medical notes. It was also argued that the consultant the following morning reached a different opinion. The Applicant sought for an order restraining the respondent from acting similarly in the future, an order for damages and an order for costs.

The respondent submitted that the Order pursuant to Section 23 was validly made as the doctor reviewed the hospital records, interviewed the applicant independently and talked with the consultant on call.

Counsel for the respondent read Section 23 in conjuncture with Section 24 of the Act. Section 24 essentially outlines that following 24h from the trigger of Section 23, the detained voluntary patient must be assessed by a consultant psychiatrist. Counsel highlighted that the Oireachtas chose the wording of these provisions with care.

Counsel for the respondent also explained the scope of the test for both section 23 and section 24 as follows: –

• Section 23, the person making the order (medical practitioner, consultant psychiatrist, registered nurse) must be ‘of the opinion’ that the patient was suffering from a mental disorder.
• Section 24, the consultant psychiatrist must be ‘satisfied’ that the patient was suffering from a mental disorder.

Thus, the test for the opinion reached by the doctor on the night of the incident triggering section 23 had a lower threshold than the test for the consultant psychiatrist’s opinion to further detain the applicant.

It was further submitted that the doctor in the making of Section 23, complied with the requisite statutory test, as underpinned in the authority of PL v Clinical Director of St. Patrick’s University Hospital [2019] 2 IR 266.

Ruling

Mr Justice Barr refused the reliefs sought by the applicant on the basis that, and having regards to the circumstances of the case, the doctor’s opinion of a mental disorder and the Section 23 Order based on that opinion were not arguably unlawful.

Indeed, the Court noted that the doctor carried the appropriate private examination observing signs of agitated behaviour. The doctor reviewed the referral note and prior records. The doctor consulted with the consultant on call.

Mr Justice Barr concluded that while the applicant, as a voluntary patient, was entitled to leave the hospital at any time he chooses, having regard to the facts and the applicant’s distress, the doctor owed a duty of care not to discharge the patient of the psychiatric unit in the middle of the night. Thus, avoiding any further tragic consequences.

Conclusion

This judgment reiterates the importance of Section 23 of the Mental Health Act 2001 as a requisite Statutory threshold together with the weight of a medical practitioner’s duty of care to a patient.

This article was written by Lebeau Jonker, Partner, CKT and Ríona Denys, Intern, CKT