About this case:

• Citation:
  [2024] IEHC 564
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Conor Dignam

Delivering judgment for the High Court, Mr Justice Conor Dignam was satisfied that “the legal effect of section 57 properly construed is that it does not encompass nasogastric feeding under restraint, because if that was the intended effect of the provision, it would have been accompanied (either within or outside the Act) by safeguards and in particular by a provision for independent review”.

Background

In September 2023, the respondent was admitted as an emergency to a specialist eating disorder unit and was diagnosed with an acute eating disorder. 

Notwithstanding weekly attendance as an outpatient thereafter, the respondent continued to lose weight and was admitted voluntarily to a specialised eating disorder bed in the hospital, being at the high-risk of a life threatening event.

Shortly after, the respondent wished to discharge herself. Her doctors believed that she was unable to comprehend that she was at high risk and believed that she lacked capacity. The HSE commenced proceedings seeking orders providing for her detention at the hospital and inter alia nasogastric feeding under sedation and/or restraint if necessary.

The matter came before the court from time to time and the respondent was eventually detained pursuant to s.23 of the Mental Health Act 2001. A renewal order under the 2001 Act was made on 3 November 2023, and was revoked thereafter. Following a sudden deterioration in her condition, the respondent was again detained as an involuntary patient on foot of an admission order on the basis that she suffered with a mental disorder within the meaning of s.3(1)(b)(i) of the 2001 Act.

The respondent was unable to engage with her care plan, leading the HSE to apply to the High Court to allow her treatment with inter alia nasogastric feeding under restraint. The HSE told the court that it could only make such orders under its inherent jurisdiction if the Oireachtas had not provided for same on a statutory basis and therefore its application was for relief on an interim/interlocutory basis pending that jurisdictional issue being heard and determined and on a longer-term basis in the event that the court determined that nasogastric feeding including under restraint was not provided for on a statutory basis. 

The High Court granted interim orders pursuant to its inherent jurisdiction permitting medical and nursing staff to carry out inter alia such treatment as they considered best in the interests of the respondent, including nasogastric feeding under reasonable sedation, force and/or restraint, pending the hearing of the legal issues engaged.

The respondent was fed via nasogastric tube on a number of occasions throughout 2023 and until March 2024, when nasogastric feeding was removed from her treatment plan. 

When the matter came back before the court, Mr Justice Dignam determined that the court would hear and determine the questions of law despite the changed factual matrix, where the issues were not fully moot as it was conceivable that the respondent might require such treatment again going forward.

The High Court

The High Court found that the questions to be determined were:

• Whether, as a matter of common law, nasogastric feeding constitutes a form of medical treatment? 
• As a matter of statutory interpretation, if nasogastric feeding is a form of medical treatment, whether it comes within the definition of “treatment” in s.2 of the 2001 Act? 
• If nasogastric feeding is “treatment” within the meaning of s.2, whether it can be administered on an involuntary basis (and/or under restraint) pursuant to s.57 of that Act?

The court set out inter alia s.2(1) of the 2001 Act, which states “save where the context otherwise requires— ‘treatment’, in relation to a patient, includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder”.

The court also focused on s.57 of the Act, which states:

Mr Justice Dignam considered, inter alia, HSE v MX [2012] 1 IR 81 and MX v HSE [2012] 3 IR 254, noting the broad and purposive interpretation of “treatment” given to the proposed involuntary taking of blood samples from MX therein and the safeguard in s.60 requiring an opinion of a second consultant psychiatrist, which on the facts was an independent psychiatrist, a safeguard not present in s.57.

Finding that the correct approach to statutory interpretation was to be found in Heather Hill Management Co CLG v An Bord Pleanála [2022] IESC 43 and A, B and C v The Minister for Foreign Affairs and Trade [2023] IESC 10, the judge noted that regard was to be had to the Constitution and the European Convention on Human Rights (ECHR).

Concluding that nasogastric feeding under restraint constituted ‘treatment’ and was a ‘treatment’ purposes of s.2, the court expressed that s.57 was not properly interpreted as applying to nasogastric feeding under restraint where nothing therein or elsewhere in the 2001 Act could be interpreted as requiring an independent review of this ‘treatment’, and where evidence was not adduced of anything else amounting to an adequate safeguard providing for an independent review of the treatment.

Mr Justice Dignam did not accept that the presumption of constitutionality or the various ‘safeguards’ outside the 2001 Act as contended for by the HSE could lead to a conclusion that there would be an independent review of this treatment, opining:

Having so concluded, the judge determined that the court’s inherent jurisdiction was available but in circumstances where there was no longer a live application to permit nasogastric feeding under restraint before the court, it was unnecessary to determine whether it would have been appropriate to exercise this jurisdiction.

Conclusion

Accordingly, the High Court invited the parties to make submissions on the appropriate orders to make, proposing that it should make a declaration that nasogastric feeding under restraint which is administered to remedy and ameliorate the mental disorder of an adult who is an involuntary patient under the 2001 Act constitutes “treatment” for the purposes of s.2 of the Act and should refuse the declaration that it constitutes “treatment” for the purpose of s.57. 

Health Service Executive v. HH [2024] IEHC 564