Health Service Executive v H.H. (Approved)

Factual and Procedural Background

The Applicant, a public health body, initiated proceedings against the Respondent, a young adult suffering from an acute eating disorder, concerning the administration of nasogastric feeding, including under restraint. The Respondent was admitted voluntarily to a specialist eating disorder unit in September 2023, but due to deterioration and risk of life-threatening complications, was subsequently detained under the Mental Health Act 2001 ("the 2001 Act") on multiple occasions in late 2023. The Applicant sought orders under the Court's inherent jurisdiction to permit nasogastric feeding under sedation and/or restraint if necessary, pending resolution of whether such feeding constitutes "treatment" under the 2001 Act and can be lawfully administered under it.

The matter was initially heard on affidavit evidence, including expert reports and submissions from the Guardian ad Litem appointed for the Respondent. Interim orders permitting nasogastric feeding under restraint were granted and continued until the hearing in March 2024. Following clinical improvements, nasogastric feeding was removed from the Respondent's treatment plan in late March 2024 and the Orders discharged. The Respondent was subsequently discharged from involuntary admission, but the Court proceeded to determine the substantive legal issues due to the likelihood of relapse and the importance of the questions raised.

Legal Issues Presented

1. Whether nasogastric feeding, including under restraint, constitutes "treatment" within the meaning of section 2 of the Mental Health Act 2001.
2. If it constitutes "treatment," whether it can be lawfully administered on an involuntary basis, including under sedation and/or restraint, pursuant to section 57 of the 2001 Act.
3. The adequacy of safeguards provided by the 2001 Act and the broader legal framework in relation to such treatment.
4. The availability and scope of the Court's inherent jurisdiction to authorise nasogastric feeding under restraint if not provided for under the 2001 Act.

Arguments of the Parties

Applicant's Arguments

• Nasogastric feeding, including under restraint, falls within the broad definition of "treatment" in sections 2 and 57 of the 2001 Act.
• It can be lawfully administered involuntarily under section 57, subject to compliance with section 4 and constitutional and Convention rights.
• The safeguards within the 2001 Act, supplemented by external safeguards such as access to courts, Codes of Practice, and professional ethical standards, are adequate to permit such administration.
• The Mental Health Tribunal process and statutory provisions concerning admission and renewal orders provide sufficient review and protection concerning treatment.
• Alternatively, if nasogastric feeding under restraint is not covered by the 2001 Act, the Court's inherent jurisdiction may be invoked to authorise it, though the Applicant contends this would require a full suite of Orders including detention.

Respondent's (Guardian ad Litem's) Arguments

• While nasogastric feeding is accepted clinically as medical treatment, it is not "treatment" within the meaning of section 2 of the 2001 Act due to inadequate statutory safeguards.
• Nasogastric feeding under restraint cannot be lawfully administered under section 57 because the 2001 Act lacks adequate safeguards, including independent review mechanisms.
• The absence of adequate safeguards renders sections 2 and 57 incompatible with constitutional rights (autonomy, dignity, bodily integrity, privacy) and the European Convention on Human Rights (ECHR).
• The statutory scheme does not provide for the necessary qualitative or substantive review of specific treatments at Mental Health Tribunals or elsewhere.
• If nasogastric feeding under restraint is not covered by the 2001 Act, the Court's inherent jurisdiction may authorise administration without requiring detention orders, allowing detention to continue under the 2001 Act.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by confirming that nasogastric feeding, including under restraint, is clinically recognized as medical treatment for severe eating disorders and may be necessary to remedy and ameliorate the mental disorder. The ordinary and natural meaning of "treatment" in section 2 of the 2001 Act, which includes the administration of physical remedies under medical supervision intended to ameliorate a mental disorder, supports the conclusion that nasogastric feeding under restraint constitutes "treatment".

However, the Court distinguished the interpretation of section 2 from that of section 57, which governs administration of treatment without consent. While section 2’s definition is broad and purposive, section 57’s application depends critically on the adequacy of safeguards to protect constitutional and Convention rights, given the significant interference with personal rights caused by involuntary nasogastric feeding under restraint.

The Court found that unlike other provisions in the Act (e.g., sections 58, 59, and 60), section 57 lacks express safeguards such as independent review mechanisms. The Mental Health Tribunal process and statutory provisions concerning admission and renewal orders do not provide a substantive or qualitative review of specific treatments, including nasogastric feeding. Reviews focus on whether the patient suffers from a mental disorder and requires appropriate treatment generally, not on the specific treatment or its administration.

External safeguards such as Codes of Practice, professional ethical standards, and access to courts were considered, but the Court concluded these do not amount to adequate safeguards. The Code of Practice on Physical Restraint, while requiring recording of restraint episodes, is non-binding and does not guarantee independent review of treatment decisions. The presumption of constitutionality and access to judicial remedies, while important, cannot substitute for the statutory safeguards absent in section 57.

Accordingly, the Court held that section 57, properly interpreted, does not authorize the involuntary administration of nasogastric feeding under restraint due to the absence of adequate safeguards. This interpretation aligns with constitutional and Convention protections of autonomy, bodily integrity, dignity, and privacy.

Given that nasogastric feeding under restraint is not authorized under section 57, the Court acknowledged that the inherent jurisdiction remains available to authorize such treatment to safeguard the life and health of incapacitated patients. However, in the present case, no live application under the inherent jurisdiction was before the Court, so the Court did not consider whether or how to exercise that jurisdiction.

Holding and Implications

The Court’s final decision is summarized as follows:

1. Nasogastric feeding under restraint constitutes "treatment" within the meaning of section 2 of the Mental Health Act 2001.

2. Section 57 of the Mental Health Act 2001 does not properly authorize the involuntary administration of nasogastric feeding under restraint due to the absence of adequate safeguards, including independent review.

3. The Court’s inherent jurisdiction remains available to authorize nasogastric feeding under restraint where the 2001 Act does not provide for it, but no such application was before the Court for determination.

Implications of this decision include that the current statutory scheme does not provide a lawful basis for involuntary nasogastric feeding under restraint absent additional safeguards. This creates a gap in the statutory framework which must be addressed by the legislature to provide clear, constitutionally compliant procedures and safeguards for such treatment. Until then, recourse to the Court’s inherent jurisdiction may be necessary in appropriate cases to authorize life- and health- preserving treatment for incapacitated patients. The Court’s ruling clarifies the interpretation of the 2001 Act but does not set new precedent beyond the facts of this case. The decision also underscores the necessity for adequate safeguards in involuntary treatment to protect fundamental rights under the Constitution and the European Convention on Human Rights.