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Mental Health Commission Takes First Prosecution of its Kind Against the HSE Under the Mental Health Act 2001



The Mental Health Commission (“MHC”), the Irish regulator of mental health services, has recently welcomed a decision by Kilkenny District Court to convict the HSE for breaches of the Mental Health Act 2001 (the “Act”). The Court imposed fines totalling €5,200 on the HSE for failures which occurred at the Department of Psychiatry, St Luke's Hospital, Kilkenny (“St Luke’s”). The fines were imposed after the MHC took the first prosecution of its kind against the HSE (the registered provider of St Luke’s) under the Act. The HSE pleaded guilty to the following charges:
  • Contravention of a condition of the registration of the premises whereby the HSE failed to implement a programme of maintenance to ensure that the premises met the needs, privacy and dignity of the resident group and failed to ensure adherence to the regulations.
  • Failure to comply with the rules governing the use of seclusion and mechanical means of bodily restraint in that the seclusion facilities at the said premises were not furnished, maintained and cleaned in such a way that ensured that patients’ inherent rights to dignity and privacy were being respected.
  • Failure to comply with the rules governing the use of seclusion and mechanical means of bodily restraint in that the seclusion register for patients was not signed by a consultant psychiatrist responsible as required by the law.
The MHC took legal proceedings against the HSE, following an inspection at St Luke’s in November 2018, which found critical risks. The Assistant Inspector of Mental Health Services for the MHC, Mr Martin McMenamin submitted photos to the Court and gave evidence in relation to the following:
  • The seclusion room had ingrained dirt on the floor and hardened patches of what appeared to be food substances. The floor was tacky, shoes were sticking to the floor and the room had not been cleaned properly for quite a while.
  • The air in the seclusion room was stale and heavy and there was no natural light. The ventilation system was clogged with debris and dirt and there were also cobwebs in the room and staining on the walls which was possibly bodily fluid.
  • One of the corridor’s floors was very heavily contaminated with dirt and there was an electrical switch with a hole underneath it which “would present a hazard to a vulnerable person who might have been able to cause harm to themselves”.
  • A dormitory had a shelf where a partially-filled urine bottle was sitting alongside cups used by residents for drinking.
  • The inspectors visited a room used for electro-convulsive therapy (ECT) but were “almost assaulted” by a “heavy, pungent smell” which made them retreat outside to catch their breath. On investigation, the smell was found to be coming from a colostomy bag which had been left in a clinical waste bin in the ECT room.
Commenting on the above failures, Mr John Saunders, Chairman of the MHC, said the following: “As a regulatory body, it is entirely unacceptable to find conditions that you would have expected to find in a Victorian workhouse in a mental health service in Ireland in 2019. Let me state again, the vast majority of service providers are doing a good job, but where we find conditions such as those found in this case, we must take action. We must ensure patients are treated in appropriate facilities.” MHC Strategy 2019 – 2022 The MHC recently published its strategy for 2019 – 2022 entitled ‘Mental Health Commission Strategy 2019-2022 Protecting People’s Rights’ (the “Strategy”).

Commenting on the Strategy, Mr John Farrelly, CEO of the MHC, issued a stark warning to providers of mental health services in Ireland, by confirming that the MHC will intervene ‘using all powers necessary’ where standards are not acceptable and human rights are not being upheld. This first prosecution by the MHC is in line with the MHC’s mission for 2019 – 2022, i.e. to ‘regulate, engage, promote, support and uphold the rights, health and well-being of all people who access mental health and decision support services.’ The MHC has published a press release in relation to this prosecution and can be accessed here.

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