High Court quashes detention renewal due to clerical errors in legal basis and date under Article 40.4.2.

Neutral Citation: [2014] IEHC 58

THE HIGH COURT

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

[2014 No. 192 SS]

BETWEEN/

P.D.

APPLICANT

AND

CLINICAL DIRECTOR, DEPARTMENT OF PSYCHIATRY, CONNOLLY HOSPITAL

RESPONDENTS

JUDGMENT of Mr. Justice Hogan delivered on the 10th day of February, 2014

1. The applicant in these Article 40 proceedings, Ms. D., is a 27 year old with a long history of mental illness who is currently detained

by the respondent by virtue of a renewal order made on 13th January 2014. Although outwardly the applicant often presents as

pleasant and cheerful, she has been presently diagnosed with schizoaffective disorder. She is a vulnerable person who has no real

insight into the nature of her condition. Having regard to the circumstances of her medical condition I accordingly made an order

pursuant to s. 27(1) of the Civil Law (Miscellaneous Provisions) Act 2008 which prohibited the publication of any details which might

identify her.

2. Ms. D. was admitted as an involuntary patient to the Department of Psychiatry, Connolly Hospital on 26th October 2013. A renewal

order was made on 13th November 2013. A Mental Health Tribunal then affirmed the admission order and the renewal order on 27th

November 2013.

3. A further renewal order was then made on 13th January, 2014, by a consultant psychiatrist. It is not in dispute but that two errors

were made in the course of completing this renewal form. First, the wrong part of the form was completed. The consultant filled out

the reference to s. 15(2) of the Mental Health Act 2001 (“the 2001 Act”) rather than to s. 15(3). Second, the wrong date was

inserted, since it refers to (either) 13th or 14th April 2013. Having inspected the original on a number of occasions, I confess that it is

hard to say whether the reference is to either 13 or 14. While the figure “4” seems to have been written over the figure “3”, both are

clearly visible. The reference to “2013” is obviously wrong, since it should be to “2014”. The consultant immediately noticed these

errors and wrote a brief memorandum to the effect that she hoped that this would not have implications for the subsequent Tribunal

hearing.

4. These are entirely pardonable mistakes: which of us through force of habit have not, for example, mistakenly referred in

correspondence to the old year having momentarily forgotten that we are now in a new year? Nevertheless, as it is this renewal order

which forms the basis of the applicant’s current detention, there is no escaping the fact that this order contains these errors in

relation to the document which forms the current legal basis of the applicant’s detention.

5. The Mental Health Tribunal nevertheless affirmed the applicant’s detention pursuant to s. 18(1) of the 2001 Act. It heard evidence

from the consultant physician who clarified that she had intended to refer to 14th April, 2014. The Tribunal summarised its reasoning

thus:

“In essence, the Tribunal is of the view that these errors on the face of the document do not affect the substance of the

order, in particular given the benefit of the receiving consultant physician’s evidence relating to these errors….The

Tribunal also formed the view that these errors did not cause an injustice. It is the view of the Tribunal that these errors

were mere technical defects which could be cured by the Tribunal: see EH v. Clinical Director of St. Vincent’s Hospital

[2009] IESC 46, [2009] 3 I.R. 771.”

6. I fear that I cannot agree with the Tribunal’s conclusion. First, the critical point is that by virtue of the structure of s. 18(1) the

2001 Act the Tribunal’s task is simply to review the earlier admission or renewal order. Even where the Tribunal affirms such an order,

the decision of the Tribunal does not actually supplant or replace the earlier order. Thus, for example, on the return to the present

Article 40.4.2 inquiry, the certified ground justifying the detention was that the respondent held the applicant pursuant to a renewal

order made under s. 15 of the 2001 made on the 13th January 2014. It follows, therefore, that the renewal order itself remains the

basis for the detention.

7. Second, nor is this case where the provisions of s. 18(1)(a)(ii) come into play at all. These provisions permit the Tribunal to affirm

the renewal order even where there has been a failure to comply with the requirements of ss. 9, 10, 12, 14, 15 or 16 if it is satisfied

that “the failure does not affect the substance of the order and does not cause an injustice.” Section 18(1)(a)(ii) accordingly enables

the Tribunal under certain circumstances to disregard any infirmities which might attach to the renewal order by reason of earlier non-

compliance with certain key procedural requirements prescribed by the 2001 Act.

8. This, however, is not quite what has happened here. It is not suggested that there has, in fact, been some prior non-compliance

with statutory formalities such as might render invalid a renewal order which is otherwise good on its face. It is rather a question of

whether the order – in this case, the renewal order of 13th January 2014 – is, in fact, good on its face and whether it recites an

appropriate legal basis for the applicant’s detention.

9. The test for documentary error was recently re-stated by the Supreme Court in GE v. Governor of Cloverhill Prison [2011] IESC 41.

In this case the issue was whether a notice given to the applicant non-national refusing him leave to land in the State for the

purposes of s. 5(2) of the Immigration Act 2003 was valid on its face such as would justify his detention pending his removal from the

State.

10. The Supreme Court held that the document was invalid on its face, thus rendering the detention unlawful. Denham C.J. re-stated

the relevant principle in the following terms:

“30. The appellant has invoked his right under the Constitution to habeas corpus. In enquiring under the Constitution as

to his custody the Court must examine the validity of the document of the 2nd August, 2011.

31. A document, such as in issue here, should contain clear information on its face as to the basis of its jurisdiction. This

information is required so that it be available to, for example, (a) the person in custody, such as the appellant; (b) the

Governor of the Prison, or any other, who is holding a person in custody; and (c) the Court which is requested to inquire

into the custody pursuant to Article 40 of the Constitution.

32. In this case the document of 2nd August refers only to s.5(2)(a) of the Immigration Act, 2003…That is insufficient to

show jurisdiction. The document is defective because it does not state on its face the reason for the arrest and

detention of the appellant. Section 5(2) confers on an officer or member of the Garda Síochána a power of arrest and

detention of “a person to whom this section applies”. Thus it is necessary to see what, if any, provision of s. 5(1) applied

to the appellant. Detective Garda McGovern, in his affidavit, swore that the appellant was “refused leave to land”. He

thus invoked paragraph (f) of s. 5(1), which was inserted by s. 16(8) of the Immigration Act, 2004. As a result of that

amendment, s. 5(1) applies to a non-national who has been refused a permission under s. 4(3) of the Act of 2004,

provided that the Garda had the additional suspicion, mentioned in s. 5(1) of the Act of 2003, that the appellant had been

unlawfully in the State for a continuous period of three months. Section 4 of the Act of 2004 made new provisions for

application for permission to land or to be in the State. Section 4(3) lists, at paragraphs (a) to (k) reasons why a person

may be refused such permission. Detective Garda McGovern appears to have relied on three of them: (e) not having a

valid Irish visa; (g) not being in possession of a valid passport; (h) having the intention to travel to Great Britain of

Northern Ireland. However, it was the fact of having refused permission to land or be in the State, for whatever reason,

which triggered the power pursuant to s. 5(2) of the Act of 2003 to arrest and detain. The Detention Order of the 2nd

August 2011 should have recited the fact of that refusal by Detective Garda McGovern and that, with reasonable cause,

he suspected that the appellant had been unlawfully in the State for a continuous period of less than three months. It

was not necessary to state the reasons for that refusal. The appellant had been given those reasons in writing, as was

required by s. 4(4) of the Act of 2004. They were open to challenge by judicial review, if there were grounds. However,

the defect in the Detention Order was the failure to state that the appellant had been refused permission to land and, as

required by s. 5(1) of the Act of 2003, that Detective Garda McGovern had “with reasonable cause suspecte[d]” that the

appellant had been “unlawfully in the State for a continuous period of less than three months”.

33. As these facts were not on the document of the 2nd August, 2011, this Court released the appellant on the 26th

August, 2011.”

11. Judged by the standards articulated in GE, I find myself coerced to hold that the errors on the face of the document are too

significant to admit of any conclusion other than that the renewal order is bad on its face. As the Supreme Court made clear in GE, it

is of vital importance that any order which provides the legal basis for any form of custody or detention should clearly recite the basis

for this on its face. In that case the administrative notice reciting that the applicant had been refused leave to land and providing for

his detention pending removal from the State failed to contain certain key recitals required by statute.

12. A similar view had previously been taken by Finlay Geoghegan J. in JD v. Director of the Central Mental Hospital [2007] IEHC 100,

a case which concerned the validity of a reception order made under the Mental Treatment Act 1945 (“the 1945 Act”) immediately

prior to the commencement of the 2001 Act. The endorsement in that case extended the applicant’s detention “by a further period

not exceeding six months”, but, as Finlay Geoghegan J. noted, it did not “specify any period for which the order is to be extended.”

She held that the order was bad on its face, noting that the principles governing whether such an order is bad on its face apply

“strictly” where the patient is detained involuntarily under the provisions of legislation such as the either the earlier 1945 Act or the

present 2001 Act

13. In the present case not only did the form contain the wrong date, but the incorrect part of the form was filled in. The scheme of

s. 15 is that an admission order remains in force for an initial period of 21 days. Section 15(2) provides that a consultant psychiatrist

can extend that period of detention for a further three months. However, s. 15(3) enables the consultant psychiatrist to extend that

period of detention for a further six months and may be further extended again for further periods not exceeding 12 months. Every

such renewal order must, of course, be reviewed by a Mental Health Tribunal under s. 18(1).

14. The recital in the present case is to the wrong sub-section. This, in itself, can have serious legal consequences, because the time

periods governing the further renewal of any detention under the 2001 Act (were it to occur) are different depending on whether the

renewal order is made under s. 15(2) as distinct from s. 15(3).

Conclusions

15. Given that the renewal order fails on its face to recite clearly either the proper legal basis for the detention or the correct date on

which the renewal order will expire, I feel bound by the decision in GE to hold that the respondent has not clearly established the

lawful basis for the detention in the manner required by Article 40.4.2.

16. This conclusion is, in many ways, an unfortunate one since it is the result of the type of routine clerical error to which all of us

are prone. It may be that the Oireachtas might well consider amending the 2001 Act to enable obvious clerical errors of this kind to

be corrected by means of a form of slip rule procedure, along, of course, with safeguards and external supervision of any changes to

an admissions order or renewal order.

17. Nevertheless, as Peart J. noted in AM v. Kennedy [2007] IEHC 136, [2007] 4 I.R. 667, 677 “mistakes have legal consequences and

cannot simply be erased for the sake of convenience.” In that case, as a result of what appears to have been an administrative

miscalculation a renewal order expired the day before the order could be considered by a Mental Health Commission. Peart J. held that

the purported review of that order by a Mental Health Commission on that following day was ineffective in law, so that the applicant’s

further detention was held to be unlawful. While that case did not, as such, concern an order which was bad on its face, it shows a

judicial approach to the construction of documents required by statute which have implications for personal liberty.

18. In these circumstances, I feel that there is no alternative but to hold that the applicant’s detention under the 2001 Act is not in

accordance with law since the document which forms the basis for that detention is not good on its face.

Postscript

19. I should record that in the immediate aftermath of the delivery of this judgment the respondent did not seek to argue that the

release of the applicant should be delayed. In these circumstances it was not necessary to consider the implications of the Supreme

Court’s decision in FX v. Clinical Director of the Central Mental Hospital [2014] IESC 1 regarding the question of the possible delayed

release of an applicant in such circumstances. I accordingly directed the immediate release of the applicant in accordance with Article

40.4.2 of the Constitution.