Case Study: Health Service Executive v JB (No.2) (2016) IEHC 575

Kieran Murphy details a recent Irish High Court case with implications across the areas of disability, mental health and civil rights.

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  • This case study examines a recent Irish High Court case regarding an application by an adult to be discharged from his detention in an institution in the U.K.
  • This detention had been ordered by the Irish courts when the applicant was still a child.
  • The case raises a number of interesting issues regarding the implementation of the Mental Health Act 2001, the Disability Act 2005 and the High Court’s powers to order the detention of people to vindicate their constitutional rights.

The jurisdiction of the High Court to detain people if they were a danger to themselves or others was extended to vulnerable adults in 2011 with the case of Health Service Executive (HSE) v. O’B[1]. In that case the vulnerable person in question had a long standing history of what was termed “very challenging behaviour” and “extreme violence”.  At the time of the case he was over 18 and thus an adult. The HSE argued that it was in his best interests that he received clinical, medical and nursing treatment in an environment of therapeutic security, namely the Central Mental Hospital in Dundrum. The judge said that “where an adult lacks capacity and where there is a legislative lacuna so that the adult’s best interests cannot be served without intervention by the Court, I am satisfied that the Court has jurisdiction to intervene.” Accordingly an order was made by the judge to detain Mr O’B, subject to regular review by the court.

In the HSE v O’B the person detained had been found to lack capacity. An interesting potential extension of that case was heard in the High Court on 6th October 2016[2].  Ms Justice Bronagh O’Hanlon gave a judgment on a case concerning J.B., who had lived in St. Andrew’s Hospital in Northampton by order of the Irish High Court since 2011. He had been placed in the hospital, while still a child, as there was no facility in Ireland suitable for his needs. When he reached the age of 18, J.B. challenged this continued detention or any other similar plans for his care as being a deprivation of liberty now that he was an adult.

The judge considered whether the Mental Health Act 2001 did apply in this case. JB had been diagnosed with a personality disorder. It was found that personality disorder did not come within the scope of a “mental disorder” under the Mental Health Act 2001 and so he was not detainable under that Act. On this point the judge concluded that as “JB is an adult with capacity and is not presently detainable under the Irish Mental Health Act 2001, any further detention (in St Andrew’s Hospital) is illegal”.

During the case the judge referenced another statutory scheme, the Disability Act 2005, saying that “the HSE is under a statutory obligation to provide services to a person with a disability such as J.B. under the Disability Act 2005, should he be formally assessed as a disabled person”[3]. The judge said if JB was found to be a person requiring accommodation needs under the Disability Act, then there would be an obligation on  the HSE and/or TUSLA to provide secure and settled accommodation for him pending his being given long-term accommodation by the local county council. The Judge appeared to reject JB’s own direct evidence that he could look after his own living arrangements and noted that there was an available bed in the Central Mental Hospital where JB could temporarily remain as a voluntary patient pending provision of the promised place with a disability service provider. Ms Justice O’Hanlon continued that “it is in his best interests that he would be monitored weekly in that area to ensure that he is compliant with his medication”[4]

This case raises a number of interesting questions. Firstly, it was not clear from the judgment if the obligation on the HSE to provide a service to J.B. was based on the Disability Act 2005 as there was no evidence provided in the court report as to whether an assessment of need had been completed for him as required under the Disability Act 2005.

The second interesting point is whether this case extends the inherent jurisdiction of the High Court to detain persons “with capacity” to vindicate their constitutional rights. Counsel for J.B. had argued that that the law was clear that a person with capacity cannot be detained under the inherent jurisdiction and that there was no legal basis to detain J.B. It is here that the ambiguity of the decision in this case becomes apparent. In relation to J.B.’s detention in St Andrew’s Hospital it was found that he was not detainable as he had capacity; but he was to be detained in the Central Mental Hospital. The judgment itself does not reach a conclusion on whether this “new” detention in the Central Mental Hospital is based on the inherent jurisdiction of the High Court to detain J.B. in order to vindicate his constitutional rights. This new detention appears to be on the basis that J.B. voluntarily chose to go to the Central Mental Hospital.

The case raises another issue regarding deprivation of liberty. Ms Justice O’Hanlon said that “it is in his best interests that he would be monitored weekly in that area to ensure that he is compliant with his medication”.[5] This direction that he be “monitored weekly” would appear to be a deprivation of his liberty, regardless of whether he was a “voluntary” patient in the Central Mental Hospital or not.

Finally this case brings into focus the High Court extending its remit in the absence of a statutory or legislative framework. In an analogous case regarding the use of court power’s in the absence of legislation concerning children, S.S. (A Minor) v. Health Service Executive [2008] [6], it was said that the frequent invocation and exercise of exceptional constitutional powers, absent principles of application or, any statutory or regulatory framework is undesirable.

[1] Health Service Executive v O’B. (a person of unsound mind not so found) (2011) IEHC 73

[2] Health Service Executive v JB (No.2) (2016) IEHC 575

[3] Health Service Executive v JB (No.2) (2016) IEHC 575 at paragraph 115.

[4] Health Service Executive v JB (No.2) (2016) IEHC 575 at paragraph 117.

[5] Health Service Executive v JB (No.2) (2016) IEHC 575 at paragraph 117

[6] S.S. (A Minor) v. Health Service Executive [2008] 1 I.R. 594 at paragraph 76

Kieran Murphy B.C.L.; LL.B; R.N.I.D.  is a lecturer on the Diploma in Disability Studies in University College Cork.

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