A severely mentally ill man, described as dangerous and a “grave” risk to himself and others, may be detained in the Central Mental Hospital as a ward of court rather than under the Mental Health Act, a judge ruled.
The President of the High Court, Mr Justice Peter Kelly, made the ruling following a dispute between the HSE and the man over the appropriate procedure for his detention.
The man’s lawyers argued he would have greater protection if detained under the Mental Health Act 2001 (MHA), including in relation to review of his detention, proposals to change his medication, restrain or isolate him.
The HSE argued wardship was more appropriate as it had been established the man is of unsound mind and needs protection in the interests of himself and everyone else.
In his judgment on Monday, Mr Justice Kelly ruled the man met the necessary criteria for admission to wardship.
The man’s rights as a ward of court detained at the CMH under a court order “are no less” than of a person detained at that institution under the MHA, he said.
Detention of a ward of court has to be operated in a way that is consistent with the Constitution and European Convention on Human Rights and is subject to regular reviews at which they are entitled to appear or be represented.
Detention orders under wardship jurisdiction made by the President of the High Court do not authorise restraint unless a restraint order is sought on appropriate evidence, he added.
Regular reviews
In some respects, entitlements of a detained ward of court are greater than those of people detained under the MHA, for instance, a ward can have more regular reviews and has immediate and automatic access to the High Court if their circumstances change, he said.
He directed the man’s continued detention in the CMH, as a ward of court, and said it would be reviewed in June.
Feichín McDonagh SC, for the man, said he may seek to appeal the judgment.
The man was due for release from the CMH last year after serving sentences for serious criminal offences. Because no institution except the CMH was considered capable of securing his safety and welfare, an issue arose because his situation is not catered for under the MHA.
The 2001 Act provides for a person such as the man to be treated in an “approved centre”, other than the CMH, but no other approved centre was willing or able to provide the secure detention and treatment necessary.
There was no question of the man being released because of the risk his mental illness poses to himself and the public, the judge said.
The uncontroverted evidence showed full consideration was given to the possibility of detaining the man under the 2001 Act but that was not thought possible. The uncontradicted evidence, including from a court-appointed independent medical visitor, was the only hospital suitable for his detention was the CMH.
This man was detained at the CMH under a sentence of imprisonment which expired last year.
Because the 2001 Act did not permit his direct transfer to the same hospital, it would have been necessary to have him admitted to an approved centre before seeking to transfer him from there back to the CMH but no approved centre would admit him, even for a limited time.
The man’s lawyers advocated an “elaborate” and “unworkable” alternative procedure involving signing an order for his admission to an approved centre and the court ordering his short-term detention in the CMH but without invoking the wardship jurisdiction, the judge said. “No legal basis for such an order exists in my view.”
Given the facts, the appropriate procedure was invocation of the wardship jurisdiction, he ruled.
