A High Court judge has ruled that a man’s claims against the Health Service Executive over medication administered without his consent required prior court leave under the Mental Health Act 2001. The judge refused the State’s application to strike out the separate constitutional challenge to the Act’s treatment provision.
The ruling by Ms Justice Emily Egan concerns the procedural status of proceedings brought by a man identified as EC. It does not decide whether the medication or restraint was lawful, whether the man lacked capacity to consent, or whether section 57(1) of the Act is constitutional.
EC was detained at the acute psychiatric unit of Tallaght University Hospital in December 2022. He refused depot antipsychotic medication. On 15 and 22 December he was physically restrained and given injections. His treating psychiatrist said in an affidavit that capacity assessments had been carried out before each injection. The HSE maintained that the restraint followed the relevant code and its internal policy.
EC’s plenary proceedings sought declarations that the treatment and restraint were unlawful, damages on several grounds, and an injunction. He also argued that section 57(1), which permits treatment without consent in specified circumstances, would breach constitutional and European Convention rights if the capacity assessment used by the HSE was legally sufficient. His treating psychiatrist was later removed from the case. EC was discharged from hospital on 27 January 2023.
The State applied to strike out the proceedings on the basis that they had been started without leave under section 73. The HSE took no active part in the application, but said it would not oppose a future application for leave to bring broadly equivalent proceedings.
Justice Egan held that EC’s claims against the HSE, including the claims for declarations and damages arising from non-consensual treatment, required leave before the proceedings began. She considered those claims essentially private law claims, despite their public law elements. She also concluded that section 73 operates as a jurisdictional bar, so the HSE’s failure to apply under the specific procedure in the court rules did not entitle EC to pursue those claims in the current proceedings.
The constitutional challenge against the State stood on a different footing. The judge held that section 73 could not require leave for a challenge to the constitutionality of section 57(1), because applying the restriction could prevent the court from ruling for a plaintiff even if the challenged provision were found unconstitutional. She therefore refused the State’s application to strike out that part of the case.
The judge made no final orders on the remaining proceedings. She listed the matter for mention on 19 May 2023 to set a date for submissions on what orders should follow.