The High Court has found that the continuing involuntary detention of a 68-year-old woman at St Vincent’s Hospital was lawful, rejecting an Article 40 challenge to the order under which she was being held.
E.H., who suffered from what the judgment described as a mixed affective state of vascular dementia, had been detained as an involuntary patient from August 2008. On December 10, 2008, a Mental Health Tribunal revoked the existing detention order because it contained an incorrect date.
She remained in the hospital and was formally treated as a voluntary patient. That status later became central to the High Court proceedings. E.H. argued that she lacked capacity to become a voluntary patient and was not, in reality, free to leave.
On December 22, when she attempted to leave, the hospital invoked section 23 of the Mental Health Act 2001. That provision permits the short-term detention of a voluntary patient who wishes to leave where a clinician considers the person to be suffering from a mental disorder. Another consultant psychiatrist examined E.H. and certified that she required detention. A fresh admission order followed on December 23.
A Mental Health Tribunal affirmed that order on January 9, 2009. A renewal order was then made on January 12 and formed the legal basis for E.H.’s detention when the High Court heard the case.
Mr Justice O’Neill held that the statutory definition of a voluntary patient covered a person receiving treatment who was not subject to an admission or renewal order. Even if E.H.’s detention between December 10 and 22 had otherwise been unlawful, the judge held that this did not prevent the hospital from subsequently using sections 23 and 24 to regularise her status.
The court therefore found the December 23 admission order valid and held there was no basis for declaring the current detention unlawful.
Importantly, the judgment did not decide whether E.H. had actually been unlawfully detained during the earlier 12-day period or what remedy might follow if she had been.