Supreme Court dismisses appeal against mental health detention citing technical defects do not justify release.

THE SUPREME COURT

Murray CJ.

Fennelly J.

Kearns J.

Macken J.

Finnegan J.

[S.C. No. 094 of 2009]

IN THE MATTER OF AN APPLICATION

FOR AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

E. H.

APPLICANT

AND

THE CLINICAL DIRECTOR OF ST. VINCENT’S HOSPITAL, AIDEEN FREYNE AND THE MENTAL HEALTH

TRIBUNAL

RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered the 28th day of May, 2009

This is an application under Article 40 of the Constitution by way of appeal from the order of the High Court (O’Neill J.)

dated 24th February, 2009 which refused to discharge the applicant from detention at St. Vincent’s Hospital in Dublin. In

this appeal the applicant seeks:-

(a) An order that the applicant’s detention at St. Vincent’s Hospital, Dublin is not in accordance with law and/or

that such detention is contrary to the provisions of Article 40.4 of the Constitution of Ireland.

(b) A declaration that the applicant by reason of her incompetence was not a truly voluntary patient in St.

Vincent’s Hospital from 10th December, 2008 to 22nd December, 2008.

(c) A declaration that the definition of “voluntary patient” in s.2 of the Mental Health Act 2001 as found by the

High Court herein is incompatible with the provisions of Article 5 of the European Convention for the Protection

of Human Rights and Fundamental Freedoms, as amended.

At the culmination of the inquiry conducted in the High Court the learned High Court judge concluded, for the reasons set

out in his judgment delivered on 6th February, 2009, that the applicant’s detention in St. Vincent’s from 22nd December,

2008 onwards was lawful. He took the view that the issue as to whether a prior period of detention from 10th December,

2008 to 22nd December, 2008 was otherwise in accordance with law was immaterial to the outcome of the inquiry before

him.

BACKGROUND

E. H. is a single woman who was born on 25th May, 1940. Historically, she has resided alone in a dwellinghouse in south

County Dublin. Her only close relative appears to be a brother who lives elsewhere in Dublin.

Ms. H. was first seen by the psychiatric service in St. Vincent’s Hospital on 16th May, 2008 when she was being treated

there in relation to a fracture of her leg. At that time the medical team attempting to treat her injury noted that she appeared

to be paranoid and was refusing treatment. On 23rd May, 2008, Ms. H. was assessed by Dr. Aideen Freyne, consultant

psychiatrist at St. Vincent’s Hospital, who concluded that Ms. H. was suffering from a mental disorder. She prescribed

antipsychotic medication to treat a psychotic condition. The extent of her illness is exemplified by Dr. Freyne by reference

to the applicant’s belief at that time that she had inherited a substantial cash fortune of millions of euro through the female

line of her family and that she needed to spend that money in order to save Dun Laoghaire Harbour.

Ms. H. was admitted to Elm Mount Psychiatric Unit in St. Vincent’s Hospital on 3rd June, 2008 as an involuntary patient.

At that time she was not accepting medical treatment on the surgical ward in the general hospital complex as she did not

believe she was ill. She was also refusing to eat or drink at this time. It appears that Ms. H. responded well to the course of

antipsychotic medication to the point where it was possible to discharge her from Elm Mount Unit on 30th June, 2008 with

a defined discharge plan in place to meet her continuing needs, including an occupational therapy assessment and family

support from her brother who had been continuously involved in her care and welfare arrangements.

However, following her discharge, Ms. H. refused to co-operate with the discharge care plan and rejected the package of

health and personal social services that had been put in place for her, including a home help service and assistance from her

community psychiatric nurse. Crucially, the applicant stopped taking her essential medication.

In mid-July, 2008 Ms. H’s personal circumstances at home had become critical. When health personnel called to her home

on 17th July, they found the applicant to be seriously ill and almost unconscious. She was dehydrated and suffering from a

kidney infection. She was removed immediately to St. Michael’s Hospital where her clinical needs were treated and where

she was further assessed both by a locum psychiatrist in St. Michael’s and by a liaison psychiatrist, subsequent to which she

was transferred back to the Elm Mount Unit on 7th August, 2008. This admission was also involuntary and the admission

order was affirmed by a Mental Health Tribunal on 25th August, 2008. A renewal order was made on 10th September,

2008.

It is important to stress just how ill this unfortunate woman was. When she left hospital on 30th June, 2008 she weighed

51.9 kg., which is slightly below average, but on 11th August, 2008 she weighed only 41.2 kg., which was seriously

underweight and an indicator of significant self-neglect. Following her re-admission to Elm Mount Unit she was noted to be

depressed, with severe mood swings suggesting a bi-polar disorder. She was treated with antipsychotic and antidepressant

medication with a specialised psychiatric nursing care regime to encourage her to eat and drink. In October, 2008 she was

treated with lithium, a mood stabiliser, which was intended to make Ms. H’s mental condition sufficiently stable to facilitate

her discharge into long term care. However, as noted by Dr. Freyne in her affidavit, there was evidence on the occasion of

the re-admission of Ms. H. that she was developing dementia. A CT Scan showed ischaemic changes suggestive of a

possible lack of oxygen to the brain. Furthermore, her performance in clinical cognitive testing was also found to be

fluctuating. She further demonstrated symptoms of passivity and lack of motivation at this time. She required the assistance

of nursing staff to carry out the basic requirements of personal hygiene. She had stopped paying her rent in January, 2008,

suggesting that she was unable to manage her affairs.

On 10th December, 2008 the renewal order under which the applicant was being detained in St. Vincent’s Hospital was

revoked by the Mental Health Tribunal. Apparently a date had been left out of a renewal form and the Tribunal took the

view that in view of this omission it lacked jurisdiction to further renew the order under which Ms. H. was being detained.

In her affidavit Dr. Freyne states that this was explained to Ms. H. who indicated that she was pleased that there was no

longer an order detaining her in the unit. Dr. Freyne further deposes that Ms. H. verbally agreed to stay until her brother

came to collect her at a future date. Dr. Freyne states further in her affidavit that this was not the first occasion where in the

course of her clinical treatment of the applicant that she agreed to remain as a voluntary patient in the unit. She had

previously agreed to remain as a voluntary patient in the unit when an earlier detention order had been revoked in June,

2008.

However, Ms. H. did not sign the voluntary admission form and the hospital records indicate that she lacked the “capacity”

to sign a voluntary form “because of her dementia and mental illness”. The hospital records further note that if Ms. H.

were to attempt to leave the ward she would require to be detained under s.23 of the Mental Health Act 2001.

The records further indicate that on 22nd December, 2008 Ms. H. did indeed try to leave the unit and was found at the

doors leading to Elm Mount upper ward. The records go on to state that in view of her attempts to leave the unit, the

procedures under sections 23 and 24 of the Act of 2001 were then invoked.

This detention enabled ongoing treatment to be provided for Ms. H. which consisted of intramuscular antipsychotic

medication. Her mood gradually improved and she began taking oral medication again. Since that time further changes have

been made to her medication and her condition continues to improve. The involuntary detention of the applicant made on

22nd December, 2008 was reviewed by the Mental Health Tribunal on 9th January, 2009. On that occasion the Mental

Health Tribunal affirmed the admission order made on 22nd December, 2008. Various renewal orders have thereafter been

made and, as of the date of the hearing of the appeal herein, Ms. H. is detained in St. Vincent’s Hospital on foot of a further

renewal order made on 9th April, 2009.

SUBMISSIONS OF THE PARTIES

At the outset of the hearing of the appeal, Mr. John Rogers, senior counsel on behalf of Ms. H., stated in response to a

direct question from the Court that Ms. H., notwithstanding her mental illness, had been and was competent to give

instructions to her legal advisers in this case. He maintained, however, that Ms. H. was at no time during her stays in St.

Vincent’s Hospital a voluntary patient within the definition contained in s.2 of the Mental Health Act 2001. He submitted

that, properly understood, the definition of “voluntary patient” in the Act had to be taken as meaning a person who freely

and willingly consented to remaining in hospital. That was not the case here, because when Ms. H. sought to leave St.

Vincent’s Hospital on 22nd December, 2008 she was prevented from doing so. Furthermore, for the period of ten days

preceding that event, she had been deprived of the protections set out in the Mental Health Act, 2001, from s.14 onwards,

such as her statutory right to a review of her detention. Mr. Rogers submitted further that the term “voluntary patient”

should be given a narrow and literal interpretation which, he submitted, would be in accordance with the applicant’s rights

under the European Convention on Human Rights. As Ms. H. was not in truth a voluntary patient during the ten days in

question, having regard to the fact that her mental condition altogether precluded her giving such consent, her detention

during that period was accordingly unlawful. Mr. Rogers further submitted that this unlawful detention tainted or had a

domino effect on the procedures subsequently deployed under s.23 and s.24 of the Act of 2001. These procedures could

only be deployed in respect of a person who was a voluntary patient. Accordingly, Mr. Rogers argued, Ms. H’s detention

was unlawful and remained unlawful. While accepting that Ms. H. was a person with serious mental illness, who had been

diagnosed by his own expert as suffering from vascular dementia of moderate severity complicated by organic bi-polar

affective disorder, Mr. Rogers stated that it was not for the Court to “second guess” or speculate as to what would become

of Ms. H. if her release from St. Vincent’s was directed by the Court.

In response Mr. Felix McEnroy, senior counsel for the first and second named respondents, pointed out that the High Court

had held that E. H. was between 10th December, 2008 and 22nd December, 2008 a voluntary patient within the meaning of

s.2(1) of the Mental Health Act 2001. The High Court had further held that Dr. Freyne lawfully invoked the provisions of

ss. 23 and 24 of the Mental Health Act, 2001 to make an order detaining her for treatment. He submitted that the definition

of “voluntary patient” in s.2(1) of the Mental Health Act 2001 had a particular meaning and that meaning was not

repugnant to the provisions of the Constitution, nor does it violate Ms. H.’s rights under Article 5 of the European

Convention on Human Rights.

Mr. McEnroy further submitted that the remedy of an inquiry under Article 40.4.2 of the Constitution exists to determine

only one legal issue, namely, whether, or not, at the time of the hearing of such inquiry the applicant is in unlawful

detention. At the time that the application for an inquiry under Article 40 was made to the High Court, the detention

complained of by E. H. had come to an end a month previously. The whole application was therefore a moot.

With regard to the domino effect argument, there had been no specific complaint that the statutory processes set out in the

Mental Health Act, 2001 were not correctly followed in the making of subsequent detention orders by either Dr. Freyne or

in the independent statutory reviews of them by the Mental Health Tribunals. Even if there had been some irregularity in the

arrangements put in place for Ms. H. between the 10th December, 2008 and 22nd December, 2008, there was no reason to

believe that subsequent orders had been “infected” or that any domino effect kicked in. In this respect Mr. McEnroy relied

upon previous decisions of this Court in R.L. v. The Clinical Director of St. Brendan’s Hospital and Others (Unreported,

Supreme Court, 15th February, 2008) and Cudden v. Clinical Director of St. Brigid’s Hospital (Unreported, Supreme

Court, 13th March, 2009).

Mr. Peter Finlay, senior counsel on behalf of the third named respondent, adopted and supported the submissions advanced

by Mr. McEnroy and further submitted that the proposition advanced by Mr. Rogers was contrary to the scheme and spirit

of the Act of 2001. This was a legislative scheme which had been put in place for the better protection of persons such as

Ms. H. and he cited in support a passage from the judgment delivered by McGuinness J. in Gooden v. St. Otteran’s

Hospital [2005] 3 I.R. 617 which stressed the paternalistic and protective character of the legislation in question.

THE MENTAL HEALTH ACT, 2001

There can be no doubt but that the Mental Health Act, 2001 was designed with the best interests of persons with mental

disorder in mind. Thus, under s.4(1) of the Act it is provided as follows:-

“In making a decision under this Act concerning the care or treatment of a person (including a decision to

make an admission order in relation to a person), the best interests of the person shall be the principal

consideration with due regard being given to the interests of other persons who may be at risk of serious harm

if the decision is not made.”

The following provisions of the Act are relevant to the matters under consideration in this case:-

Section 2:

"2. - (1) In this Act, save where the context otherwise requires: -

....

'voluntary patient' means a person receiving care and treatment in an approved centre

who is not the subject of an admission order or a renewal order.

Section 4 :

4. -(1) In making a decision under this Act concerning the care or treatment of a person (including

a decision to make an admission order in relation to a person), the best interests of the person shall

be the principal consideration with due regard being given to the interests of other persons who

may be at risk of serious harm if the decision is not made.

Section 9:

9. - (1) Subject to the sub-sections (4) and (6) and section 12 where it is proposed to have a person

(other than a child) involuntarily admitted to an approved centre, an application for a

recommendation that the person be so admitted may be made through a registered medical

practitioner by any of the following:

(a) the spouse or a relative of the person,

(b) an authorised officer,

(c) a member of the Garda Síochána, or

(d) subject to the provisions of subsection (2), any other person.

(2) The following persons shall be disqualified from making an application in respect of person -

(a) a person under the age of eighteen years,

(b) an authorised officer or member of the Garda Síochána who is a relative of the

person or of the spouse of the person,

(c) a member of the governing body, or the staff, or the person in charge of the approved

centre concerned,

(d) any person with an interest in the payments (if any) to be made in respect of the

taking care of the person concerned in the approved centre concerned,

(e) any registered medical practitioner who provides a regular medical service at the

approved centre concerned,

(f) the spouse, parent, grandparent, brother, sister, uncle or aunt of any of the persons

mentioned in the foregoing paragraphs (b) to (e), whether of the whole blood, of the half

blood or by affinity.

Section 14:

14. - (1) Where a recommendation in relation to a person, the subject of an application, is received

by the clinical director of an approved centre, a consultant psychiatrist on the staff of the approved

centre, shall, as soon as may be, carry out an examination of the person and shall thereupon either

-

(a) if he or she is satisfied that the person is suffering from a mental disorder, make an

order to be known as an involuntary admission order and referred to in this Act as 'an

admission order' in a form specified by the Commission for the reception, detention and

treatment of the person and a person to whom an admission order relates is referred to

in this Act as 'a patient' or,

(b) if he or she is not so satisfied, refuse to make such an order.

Section 15:

15. - (1) An admission order shall authorise the reception, detention and treatment of the patient

concerned and shall remain in force for a period of twenty-one days from the date of the making of,

and, subject to sub-section (2) and section 18 (4) shall then expire.

(2) The period referred to in sub-section (1) may be extended by order (to be known as, and in this

Act and referred to as 'a renewal order') by the consultant psychiatrist responsible for the care and

treatment of the patient concerned for a further period not exceeding three months.

(3) The period referred to in sub-section (1) may be further extended by order made by the

consultant psychiatrist concerned for a period not exceeding six months, beginning on the

expiration of the renewal order made by the psychiatrist under sub-section (2) and thereafter may

be further extended by order made by the psychiatrist for periods, each of which does not exceed

twelve months (each of which orders is also referred to in this Act as 'a renewal order' . . .

Section 18:

18. - (1) Where an admission order or a renewal order has been referred to a Tribunal under

section 17, the Tribunal shall review the detention of the patient concerned and shall either-

(a) if satisfied that the patient is suffering from a mental disorder, and

[i] that the provisions of sections 9, 10, 12, 14, 15 and 16 where applicable,

have been complied with, or

[ii] if there has been a failure to comply with any such provision, that the

failure does not affect the substance of the order and does not cause an

injustice, affirm the order or

(b) if not so satisfied, revoke the order and direct that the patient be discharged from the

approved centre concerned.

Section 23:

23. - (1) Where a person (other than a child) who is being treated in an approved centre as a

voluntary patient, indicates at any time that he or she wishes to leave the approved centre, then, if a

consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the

approved centre is of opinion that the person is suffering from a mental disorder, he or she may

detain the person for a period not exceeding twenty-four hours or such shorter period as may be

prescribed, beginning at the time of aforesaid . . .

Section 24:

24. - (1) Where a person (other than a child) is detained pursuant to section 23, the consultant

psychiatrist who is responsible for the care and treatment of the person prior to his or her

detention, shall either discharge the person or arrange for him or her to be examined by another

consultant psychiatrist who is not a spouse or relative of the person.

(2) If, following such an examination, the second mentioned consultant psychiatrist -

(a) is satisfied that the person is suffering from a mental disorder, he or she shall issue a

certificate in writing in a form specified by the Commission stating that he or she is of

opinion that because of such mental disorder, the person shall be detained in the

approved centre or

(b) is not so satisfied, he or she shall issue a certificate in writing in a form specified by

the Commission stating that he or she is of opinion that the person should not be

detained and the person shall thereupon be discharged.

(3) Where a certificate is issued under sub-section (2)(a), the consultant psychiatrist responsible for

the care and treatment of the person immediately before his or her detention under section 23, shall

make an admission order in a form specified by the Commission for the reception, detention and

treatment of the person in the approved centre.

(4) The provisions of sections 15-22 shall apply to a person detained under this section as they

apply to a person detained under section 14 with any necessary modifications. . . .

Section 29:

29. Nothing in this Act shall be construed as preventing a person from being admitted voluntarily to

an approved centre for treatment without any application, recommendation or admission order

rendering him or her liable to be detained under this Act, or from remaining in an approved centre

after he or she has ceased to be so liable to be detained”

In the light of the obligation of this Court pursuant to s. 2(1) of the European Convention on Human Rights Act 2003, [the

Act of 2003], in so far as is possible and subject to the rules of law relating to interpretation and application, to interpret the

Act of 2001 in a manner compatible with the State's obligations under the Convention provisions, Article 5 of the European

Convention on Human Rights is relevant and it reads as follows:

Article 5

Right to liberty and security

1. Everyone has a right to liberty and security of person. No one shall be deprived of his liberty

save in the following cases and in accordance with a procedure prescribed by law:

(e) the lawful detention of persons for the prevention of spreading of infectious diseases,

of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) . . . ."

DISCUSSION

As noted by the learned High Court judge herein, the first aspect of the Act of 2001 which requires consideration is the

definition of a voluntary patient. It was submitted in the High Court, and again before this Court, that the word “voluntary”

must be given its ordinary meaning, a meaning which respects the provisions of the Constitution and a meaning which,

having regard to the State’s obligations pursuant to s.2 of the Act of 2003, respects the necessity for a freely given consent

to detention by a person who has capacity to give it. Mr. Rogers submitted that where a lack of capacity by virtue of mental

disorder had been clearly demonstrated, as in the instant case, it was not open to the respondents to detain such a person

against her will where that person is receiving care and treatment in an approved centre but is not the subject of an

admission order or renewal order. Nor could the provisions of s. 23 and s.24 of the Act of 2001 be invoked in respect of

such a person as the person in question was not in reality a voluntary patient. The respondents should have followed the

procedures elaborated in sections 14 – 16 of the Act of 2001 instead. In the course of his judgment, O’Neill J. summarised

the factual matrix in this regard as follows at p.10:-

“The extent of the dispute between the parties is confined to a difference of psychiatric opinion as to whether

or not in the period from 10th December, 2008 to 22nd December, 2008, the applicant was capable of

understanding her status as a voluntary patient, and, secondly, whether, in reality during that period, she was

free to leave the hospital. The fact that the applicant was, prior to 10th December, 2008, and subsequent to

22nd December, 2008, undoubtedly suffering from a mental disorder which required treatment as an

involuntary patient, must inform and influence the manner in which the court resolves the issues that arise in

this enquiry.”

O’Neill J. expressed himself as being satisfied that the definition of “voluntary patient” in the Act was consistent with the

Constitution and further noted that it had not been suggested otherwise on behalf of the applicant. In this regard he stated:-

“It would seem to me that the definition was cast in the wide terms used in order to provide for the variety of

circumstances wherein a person is in an approved centre receiving care and treatment, but not subject to an

admission order or a renewal order, including, in my view, the type of situation which has indeed arisen in

this case, namely, where a detention pursuant to an admission order or a renewal order breaks down, but

where the patient is suffering from a mental disorder and receiving care and treatment. I say this, bearing in

mind the clear linkage between the definition and sections 23 and 24, which are designed to cater inter alia,

for mishaps or unexpected developments which result in there being no admission order or renewal order in

respect of a patient who is suffering from a mental disorder which requires treatment as an involuntary patient

and who attempts to leave the approved centre.”

Further, in relation to the so called domino effect, the learned trial judge held as follows:-

“Whether or not the detention from 10th December, 2008 to 22nd December, 2008, was otherwise, in law,

illegal, is, in my view, immaterial, in so far as the application of the definition and the invocation of sections

23 and 24 is concerned. Even if the applicant was illegally detained during that period, in my view, that did

not stop that situation being brought to an end by the use of these statutory provisions, where the

circumstances of the applicant clearly brought her within the express terms of the definition, thereby leading

to the correct invocation of ss. 23 and 24, as was done.”

While a comprehensive book of authorities was lodged in this case, Mr. Rogers essentially based his submission upon the

decision of the European Court of Human Rights in HL v. UK (2005) 40 E.H.R.R. 32. The report of this case at [2004] 1

MHLR 236 was that relied upon by the counsel and cited by the learned High Court judge and for that reason will be relied

upon in this judgment also.

This was a case in which the applicant, HL, was born in 1949. He had been autistic since birth with a limited level of

understanding. He was unable to speak and frequently became agitated and self-harmed. Having spent thirty years in

Bournewood Hospital, he was discharged in March, 1994, initially on a trial basis, to live with carers. The hospital remained

responsible for his treatment. From 1995, he attended a local authority day care centre. In July, 1997, HL became

particularly agitated and began to self-harm whilst at the day centre. Staff contacted a local doctor who administered a

sedative. He remained agitated and was taken to the local accident and emergency unit. Two psychiatrists, including Dr. M,

who had been his treating psychiatrist for some twenty years, recommended that admission to hospital was in his best

interests. He was admitted as an informal patient rather than being detained under the Mental Health Act, 1983 because he

was compliant. Assessments were carried out as to whether he suffered also from a mood disorder. During this time, his

carers were not allowed to visit him as it was felt that this would prejudice the ongoing assessments and lead HL to think he

was able to leave hospital. Action was taken in the domestic courts to secure his release, premised on an argument that

detention could only be lawful if he was placed under the Mental Health Act 1983. The application was dismissed by the

High Court, which held there was a common law basis for the informal treatment of patients such as HL. The Court of

Appeal allowed an appeal, holding that HL was in fact detained – as he would not have been allowed to leave – and that the

right to detain someone on account of a mental disorder was under the Act of 1983. As a result, HL was formally detained

in late October, 1997. On 5th December, 1997, he was allowed to go to his carers on leave. On 12th December, 1997 the

hospital managers discharged HL from liability to be detained under the Act. In June, 1998, the House of Lords overturned

the decision of the Court of Appeal. There were differing views as to whether HL was in fact detained before October,

1997, but the House agreed that compliant incapacitated patients could be treated in hospital as informal patients under the

common law on the basis of the doctrine of necessity combined with a duty to act in the best interests of the patient. Mr.

and Mrs. E, the carers of HL, complained to the Health Service Commissioner that the decision to admit him on 22nd July,

1997 was unreasonable and that his case had been managed inadequately thereafter. The Commissioner found that the initial

admission was proper but that it was clear that, as he had a significantly better quality of life with his carers, he should have

been returned to them speedily with the further assessments being carried out on an out-patient basis.

A breach of Article 5.1 of the Convention was alleged in that the applicant’s placement on a locked ward in the hospital

from 22nd July to 29th October, 1997 (when formal powers were used) amounted to detention which was neither “in

accordance with the procedure prescribed by law” nor “lawful” because (a) he was not of unsound mind; (b) the common

law doctrine of necessity lacked precision and did not reflect the criteria for a valid detention under Article 5.1(e); (c) there

were insufficient safeguards against arbitrary detention on grounds of necessity.

It is with the last of these considerations that Mr. Rogers is concerned. Mr. Rogers noted that at par. 121 of the court’s

judgment it was stated:-

“As a result of the lack of procedural regulation and limits, the Court observed that the hospital’s health care

professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely

on the basis of their own clinical assessments completed as and when they considered fit. … As Lord Steyn

remarked this left “effective and unqualified control” in their hands. While the Court does not question the

good faith of those professionals or that they acted in what they considered to be the applicant’s best interests,

the very purpose of procedural safeguards is to protect individuals against any “misjudgements and

professional lapses”.”

In that case, the court concluded that it had not been demonstrated that the applicant had available to him a procedure which

satisfied the requirements of Article 5.4 of the Convention and held that there had been therefore a violation of that

provision.

However, before considering whether this decision is of any assistance to the applicant, one must of necessity first consider

the definition of “voluntary patient” within the meaning of the Act of 2001. At the outset I must confess to an immediate

difficulty in reconciling the assertions of counsel for the applicant as to his client’s lack of mental capacity on the one hand

with the contradictory assertion on the other that the applicant was and remains capable of instructing legal advisers. It is

disquieting to say the least that in a matter of such importance and sensitivity that no rational basis beyond mere assertion

was advanced for these two apparently irreconcilable propositions.

The terminology adopted in s.2 of the Act of 2001 ascribes a very particular meaning to the term “voluntary patient”. It

does not describe such a person as one who freely and voluntarily gives consent to an admission order. Instead the express

statutory language defines a “voluntary patient” as a person receiving care and treatment in an approved centre who is not

the subject of an admission order or a renewal order. This definition can not be given an interpretation which is contra

legem. The furthest Mr. Rogers can go is to argue that the definition must be construed and applied in accordance with the

provisions of the Constitution and those provisions of the Convention designed to respect and uphold the individual’s right to

freedom and personal autonomy.

Any interpretation of the term in the Act must be informed by the overall scheme and paternalistic intent of the legislation as

exemplified in particular by the provisions of sections 4 and 29 of the Act. Such an approach to interpretation in this context

was approved by this Court in the course of a judgment delivered by McGuinness J. in Gooden v. St. Otteran’s Hospital

[2005] 3 I.R. 617 when, in relation to s. 194 of the Mental Treatment Act 1945 she emphasised that a purposive

construction of the section was appropriate, stating at pp. 633 to 634:-

“In interpreting s. 194, therefore, it would in my view be right to consider the purpose of the Act of 1945 as a

whole....

At first reading the wording of s. 194 appears clear and unambiguous. If, however, it is interpreted literally as

providing an absolute right to physical release from the hospital and as preventing any use of the machinery

of s. 184 or the making of a reception order while the patient is still in the hospital, the logical result is that

the only person for whom a reception order cannot in any circumstances be made is a voluntary patient who

has given notice of discharge. During the 72 hour period of notice he is inviolate and at the end of it he must

be physically released. This situation would apply even if the patient in question was so mentally ill as to be a

danger either to himself or the public. That this is the effect of a literal interpretation of s. 194 is candidly

admitted by counsel for the applicant.”

I pause only to state that at least in that case, unlike the present one, counsel appears to have been willing to consider the

impact and likely effect on the patient of an order made directing release. McGuinness J. then continued:-

“In In re Philip Clarke [1950] I.R. 235 the former Supreme Court considered the constitutionality of s. 165 of

the Act of 1945. O’Byrne J. who delivered the judgment of the court, described the general aim of the Act of

1945 at pp. 247 to 248 thus:-

‘The impugned legislation is of a paternal character, clearly intended for the care and custody of persons

suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The

existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of

the draftsmen when it was proclaimed in Article 40.1 of the Constitution that, though all citizens, as human

beings are to be held equal before the law, the State, may, nevertheless, in its enactments, have due regard to

differences of capacity, physical and moral, and of social function. We do not see how the common good would

be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering

from such infirmity, to remain at large to the possible danger of themselves and others’

This passage has been generally accepted as expressing the nature and purpose of the Act of 1945. The Act

provides for the detention of persons who are mentally ill, both for their own sake and for the sake of the

common good.”

I do not see why any different approach should be adopted in relation to the Mental Health Act, 2001, nor, having regard to

the Convention, do I believe that any different approach is mandated or required by Article 5 of the European Convention

of Human Rights. I have great difficulty in understanding how the decision in HL v. UK (2004) 1 MHLR 236 avails Mr.

Rogers to any degree. In addressing the topic of the adequacy of safeguards against arbitrary detention the head note to the

decision of the court states:-

“When ‘unsoundness of mind’ within Article 5.1 (e) is involved, in addition to the three minimum conditions

(namely, the detainee must reliably be shown of unsound mind; the mental disorder must be of a kind or

degree warranting compulsory confinement; and the validity of the continued confinement depends upon the

persistence of such disorder), it must be established that the detention was in conformity with the essential

objective of Article 5.1, namely, to prevent individuals being deprived of their liberty in an arbitrary fashion.

This objective, and the broader condition that detention be ‘in accordance with a procedure prescribed by

law’ require the existence in domestic law of adequate legal protections and ‘fair and proper procedures’…”

The case in question could not possibly bear on the applicant’s detention subsequent to the 22nd December, 2008. All of the

statutory protections and procedures which Mr Rogers contends were absent from 10 December, 2008 to 22 December,

2008 were fully restored from that time onwards and there was no want of any procedure whereby the rights of the

applicant could be asserted.

In my view the trial judge had ample evidence upon which to find that Ms. H. was a voluntary patient within the meaning of

the Act of 2001 between 10th and 22nd December, 2008, in circumstances where Dr. Freyne, as treating specialist, gave

evidence on affidavit to that effect and was not cross-examined about her opinion at that time. That finding is sufficient in

itself to dispose of this matter, but I would add that, even had I taken a different view of the status of E. H. as of 22nd

December, 2008, I would have arrived at no different conclusion. That is because the certification of grounds justifying the

detention of the applicant in St. Vincent’s Hospital is the renewal order made on 9th April, 2009, an order against which no

challenge of any sort has been brought. I agree with the conclusion arrived at by the learned trial judge that the admission

order made on 23rd December, 2008 pursuant to s.24(3) of the Act of 2001 was in all respects valid. To the extent that the

applicant was at any time denied the benefit of certain procedural protections, it is absurd and unreal to suggest that she was

removed at any point from the protection of the Act of 2001. Indeed, as noted by O’Neill J., the first named respondent

maintained a very high level of supervision of the applicant’s condition and was at all times poised to reinstate her status as

an involuntary patient when in her judgement it was appropriate to do so. Accordingly, the protection of the procedural

requirements of the Act of 2001, even if suspended for a short period of time, was fully restored to the applicant as a result

of the admission order made on 22nd December, 2008.

I am also entirely satisfied that this appeal is a moot. I do not believe any domino effect applies. A similar contention to that

made in this case was advanced in Cudden v. The Clinical Director of St. Brigid’s Hospital (Unreported, Supreme Court,

13th March, 2009), a case in which the legality of a patient’s detention was challenged on the basis that his arrest under s.

12 of the Act of 2001 was itself unlawful. In the course of his judgment, Hardiman J. stated at p.6:-

“Article 40 is a very central, a very precious part of the Constitution which requires a judge of the High Court

or of this Court on appeal to direct the immediate release of a detained person unless affirmatively satisfied as

to the legality of his detention. This Court has considered the effect of this in what one might describe as

mental health cases in a number of previous decisions, but in particular in RL v. Director of St. Brendan’s

Hospital (Unreported, Supreme Court, 15th February, 2008). At p.7 of the judgment in that case there is a

passage which seems central to this case:-

‘We will repeat what was said by this court in the previous case of MD, that is to say, the statute of

2001 is a scheme of protection, and a very elaborate and very necessary scheme of protection,

because of course everyone, even from general knowledge, is aware of the serious misuse of the

power to detain people in mental hospitals which have taken place in fairly recent times in other

jurisdictions.

We are aware also of the judgment of the former Mr. Justice Costello P. condemning the procedures

formerly in force in this jurisdiction and mandating the establishment of a firm scheme or regime

of protection. But this is not a case which calls for protection under Article 40 of the Constitution.

The scheme of Article 40 is that the court orders the person detaining to certify, and in this case

she did so certify, reliance on the admission order. The obligation of the court, this court or the

High Court, when these things are done, is that we must order the release of such a person from

detention unless satisfied that he/she is being detained in accordance with law. The position in this

case is that we are satisfied that she is being detained as of today and was when the case was

before the High Court being detained in accordance with law, and therefore we will decline to

order the release.’

Now in this case a very similar position applies. We are quite satisfied that Dr. McAuley’s certification of the

19th February, 2009 grounds the detention of the applicant in St. Brigid’s Hospital. We do not feel called

upon by authority or otherwise to apply to this case the sort of reasoning that would be applied if it were a

criminal detention and to investigate whether previous matters which might have a causal relationship to the

present detention are invalid.”

These views apply with equal force to the facts of the present case. This case is a moot, and was such from 22nd

December, 2008 onwards. I can see no justification whatsoever for the bringing or maintenance of this appeal following the

rulings delivered by this Court in both the R.L. case and the Cudden case which effectively put paid to any suggestion that a

domino effect or theory of infection applied to cases of this nature.

E. H. is a person suffering from a mental disorder. It is not contested that E. H. is a person whose mental disorder requires

that she be detained for treatment in hospital. It is not contested, even by her own medical expert, that the clinical and

nursing staff of St. Vincent’s University Hospital, St. Michael’s Hospital Dun Laoghaire, and the Health Service Executive’s

Community Care Team have at all times acted in the best interests of E. H. within the meaning of s.4 of the Mental Health

Act, 2001. Finally, it is not contested that any procedural irregularity has attended the various orders detaining E. H. from

22nd December, 2008.

These proceedings were initiated and maintained on purely technical and unmeritorious grounds. It is difficult to see in what

way they advanced the interests of the applicant who patently is in need of psychiatric care. The fact that s. 17 (1) (b) of the

Act of 2001 provides for the assignment by the Commission of a legal representative for a patient following the making of

an admission order or a renewal order should not give rise to an assumption that a legal challenge to that patient’s detention

is warranted unless the best interests of the patient so demand. Mere technical defects, without more, in a patient’s detention

should not give rise to a rush to court, notably where any such defect can or has been cured – as in the present case. Only in

cases where there had been a gross abuse of power or default of fundamental requirements would a defect in an earlier

period of detention justify release from a later one. As O’Higgins C.J. observed in State (McDonagh) v. Frawley [1978] I.R.

131 at 136:-

“The stipulation in Article 40, s.4, sub-s.1, of the Constitution that a citizen may not be deprived of his liberty

save “in accordance with law” does not mean that a convicted person must be released on habeas corpus

merely because some defect or illegality attaches to his detention. The phrase means that there must be such a

default of fundamental requirements that the detention may be said to be wanting in due process of law. For

habeas corpus, therefore, it is insufficient for the prisoner to show that there has been a legal error or

impropriety, or even that jurisdiction has been inadvertently exceeded”

I would refuse the various reliefs sought for all the reasons set out above and dismiss the appeal.

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