Supreme Court dismisses appeal where Mental Health Tribunal certified statutory non-compliance did not affect detention substance.

THE SUPREME COURT

188 & 190/07

Hardiman J.

Fennelly J.

Macken J

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN:

M.D.

APPLICANT/APPELLANT

AND

THE CLINICAL DIRECTOR OF ST. BRENDAN’S HOSPITAL and MIRIAM GANNON

RESPONDENTS

AND

THE MENTAL HEALTH COMMISSION and THE MENTAL HEALTH TRIBUNAL

NOTICE PARTIES

JUDGMENT of Mr. Justice Hardiman delivered the 27th day of July, 2007.

Preliminary.

1. On the hearing of this appeal the Court was requested on both sides of the case to take such steps as were possible to prevent

the publication of the applicant’s name or at of any detail which might identify him. This was requested on the basis that he was,

undisputedly, a person under a disability.

2. The Court did not consider that it had, in these proceedings, any power to make an order in that regard. However the Court agreed

to, and did, request any representatives of the media who might be present not to publish his name and said that it would not itself

do so. The Court now repeats this request to any person who may wish to report this case either for the ordinary media or for the

purposes of law reporting.

Factual and Procedural Background.

3. The applicant is a middle aged man who has a long history of contact with the psychiatric services due to his being afflicted with

schizophrenia. He was first admitted as in-patient into St. Brendan’s Hospital more than twenty-five years ago and he had multiple

admissions since. The foregoing can be said with confidence on the basis of statements made by or on behalf of the respondents and

notice parties in the present proceedings, without contradiction by the applicant.

4. In March 2007 the applicant became unwell and was admitted to St. Brendan’s Hospital as a voluntary patient. On the 16th March

he left the hospital and went home. I do not think it is appropriate to use the term “absconded” to describe this departure from the

hospital (as the respondents have done) since he was a voluntary patient and was entitled to leave at any time. Moreover, this

occurred on the 16th March and on the 18th March, 2007 (the intervening day being a public holiday) the authorities agreed to

assess him continuously in his family home. The applicant was therefore, easy to contact and prepared to come to a mutually

acceptable arrangement for non-custodial treatment.

5. On the 24th April, 2007 a sister of the applicant who resides at the same address became concerned about him in a particular

context and on the following day another sister, who also resides at the same address, made an application pursuant to the Mental

Health Act, 2001 to a doctor, Hdubuisi Achara, a general practitioner, for a recommendation that the applicant be involuntarily

admitted to hospital. This application was made in the form specified by the first-named notice party pursuant to s.9(3) of the Act of

2001.

6. On foot of the sister’s application the general practitioner examined the applicant and made various findings, which to a large

extent mirror the complaints made by the sister and are suggestive of mental disorder of an almost stereotypical sort. These findings

were as follows:

“Psychotic.

Hearing voices.

Thinks he is God and receiving references from the T.V. and radio.”

7. The general practitioner formed a view that the applicant was suffering from mental disorder and that:

“Because of the severity of the illness disability or dementia, the judgement of the person concerned is so impaired that

failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition

and would prevent the administration of appropriate treatment that could be given only by such admission

and

The reception detention and treatment of the person concerned in an approved centre would be likely to benefit or

alleviate the condition of that person to a material extent.”

8. This recommendation of the general practitioner was issued on the first-named notice party’s form 5. It was headed

“Recommendation by a registered medical practitioner for involuntary admission of an adult to an approved centre.”

9. This recommendation addresses the requirements of s.10 of the Act of 2001. According to a shoulder note, this Section relates to

the “making of recommendations for involuntary admission.” The form also recites, as the Act requires, that the purpose of the

examination by the G.P. was explained to the applicant.

10. On the following day, the 26th April, 2007 a consultant psychiatrist, Dr. Rita Hughes, who is the Clinical Director of St. Brendan’s

Hospital, examined the patient and found that he was:

“Schizophrenic, deluded and actively hallucinating with [illegible] of speech.”

11. She formed the same view as that already expressed by the general practitioner, and set out above, and she made an admission

order pursuant to s.14 of the Act.

12. Pursuant to s.17 of the Act the admission order required to be notified to the Mental Health Commission and to the applicant. The

Commission was then obliged to refer “the matter” to a tribunal and to assign a legal representative to represent the patient. By

letter dated the 1st May, 2007 to Mr. Keith Walsh, Solicitor, the Commission appointed him legal representative for the patient. It is

fair to say that, throughout the subsequent proceedings, Mr. Walsh, in my view, displayed conspicuous commitment and diligence in

his client’s interest. The Commission also arranged for an independent medical examination of the applicant by a psychiatrist, as it

was required to do.

13. By letter dated the 14th May, 2007 the Commission wrote to Mr. Walsh and notified him that a Mental Health Tribunal would sit in

St. Brendan’s Psychiatric Unit, Rathdown Road, Dublin 7, on the following day at 2.30pm to conduct “a review”. He was notified of the

composition of the Tribunal.

14. It is to my mind a remarkable feature of the case that this letter failed to notify Mr. Walsh of a very significant development. This

was that on the 10th May, 2007 another psychiatrist, Dr. Gannon, had made, in the Commission’s “Form 7”, a “Renewal Order, by a

responsible Consultant Psychiatrist.” Most of the confusion which followed was caused by the making of this order, the failure to

notify the legal representative of it, and the defective notification of the patient himself. The obligation to notify the patient arises

under s.16 of the Act and requires him to be told the statutory basis for his detention. There are only two possible statutory grounds

which are identified on the form used to notify the patient as (a) and (b). The doctor making the order is required merely to tick one

or the other. Dr. Gannon ticked neither. No explanation has ever been given for this omission, but it was a serious one, a breach of

the statute, and something which caused considerable avoidable suspicion.

15. The Mental Health Tribunal duly sat on the 15th May. It consisted of a Chairperson, who was a barrister, a Consultant Psychiatrist

other than the one involved in the care of the applicant, and a lay member. It expressed its decision in “Form 8” provided by the first-

named notice party, which referred to Sections 18, 21 and 58 of the Act of 2001. Its decision was:

“This M.H.T. (Mental Health Tribunal) affirms the admission order made herein on the 26/04/07.”

16. The Mental Health Tribunal made a number of findings including that:

“It is satisfied that the patient is suffering from mental disorder”.

17. It also held both that:

“The provisions of Sections 9, 10, 12, 14, 15 and 16 where applicable have been complied with.”

And

“If there has been a failure to comply with any such provisions, that the failure does not affect the substance of the

order and does not cause an injustice.”

18. As part of the form, the Tribunal was invited to provide reasons for the decision of the Mental Health Tribunal.

19. This is an absolutely essential part of the Tribunal’s functions and is necessary in law because of the Tribunal’s very considerable

powers directly to affect the rights of a patient, including his right to liberty. It also arises from the terms of s.49(6)(j) of the Act of

2001. This Section deals in general with the obligations and procedures of a tribunal and the relevant sub-paragraph obliges it to

attend to “the making of a sufficient record of proceedings of the Tribunal.” The requirement to give reasons for a Mental Health

Tribunal’s decision in my view arises both in natural justice and under statute.

20. This, of course, is absolutely essential if the decisions of this powerful body are to be subject to proper review. It is important in

the circumstances of this case to recall that neither the consultant psychiatrist nor the Tribunal can avoid or frustrate the review

simply by the making of an inadequate or insufficient record of the exercise by them of the very considerable powers conferred upon

them by statute.

21. The record of the Mental Health Tribunal’s proceedings is, however, in general satisfactory. The following points are of

importance.

22. The Tribunal interpreted its obligation to review the detention of the applicant as discharged by reviewing his detention following

the admission order i.e. the order made on the 26th April, 2007. In doing this it rejected a submission made by Mr. Walsh, Solicitor, on

behalf of the applicant which is recorded as follows:

“Mr. Walsh, the patient’s legal representative, made a legal submission at the outset that the Tribunal did not have

jurisdiction to review the admission order herein dated 26/04/07 by virtue of the fact that a renewal order had been made

in respect of this patient on the 10/05/07. We reject this submission. We assume jurisdiction and (?) rely on s.18 of the

2001 Act to proceed to make the decision to affirm herein”.

The applicant’s case.

23. The submission, summarised above by the Mental Health Tribunal continued to form the nub of the applicant’s case on the hearing

of the present application in the High Court and in this court. This argument is fundamentally directed to the procedures adopted: it is

not denied that the applicant is suffering from a mental disorder, nor that detention and treatment in the hospital would be likely to

“benefit or alleviate the condition to a material extent”.

24. The applicant relies heavily on the general scheme of the Act which he says is directed to ensuring that no person should be

detained in a mental hospital against his will without independent review. He points out that, having been detained on foot of an

admission order pursuant to s.14, a renewal order pursuant to s.15 was made, without his knowledge, a few days before the Mental

Health Tribunal was due to sit to review his initial reception into and detention in, the hospital. He was not told of this and nor was

the lawyer whom the Mental Health Commission were obliged to appoint to look after his interests. In these circumstances he raises

the question of the date on which the renewal order made on the 10th May becomes effective, and, secondly if the renewal order is

effective to authorise his detention from the date of its making (10th May, 2007) whether the lawfulness of his original detention

under the reception order was vitiated by reason of the renewal order having been made prior to any review of his initial reception

and detention by the Mental Health Tribunal pursuant to s.18 of the Act.

Statutory provisions.

25. By reason of the submissions made it is necessary to set out certain highly relevant statutory submissions. The first of these is a

portion of s.18 of the Act of 2001 which requires the holding of a review.

26. Section 18(1) provides as follows:

“Where an admission order or a renewal order has been referred to a tribunal under s.17, the tribunal shall review the

detention of the patient concerned and shall either:

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

(i) That the provisions of Section 9, 10, 12, 14, 15 and 16 where applicable have been contrived with or

(b) (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

(c) If not so satisfied, revoke the order and direct the patient be discharged from the approved centre concerned.

27. The foregoing section is triggered by the terms of s.17 which provides:

“Following the receipt by the Commission of a copy of an admission order or a renewal order, the Commission shall, as

soon as possible -

(a) Refer to the matter to a tribunal,

(b) Assign a legal representative to represent the patient concerned unless he or she proposes to engage one,

(c) Direct in writing (refer to this section as a direction) a member of the panel of Consultant Psychiatrists

established under s.33(3)(b)(2) to

(i) Examine the patient concerned,

(ii) Interview the Consultant Psychiatrist responsible for the care and treatment of the patient and

(iii) Review the records relating to the patient.

28. The psychiatrist is required to determine in the interest of the patient whether the patient is suffering from a mental disorder and

to report in writing within fourteen days on the results of the examination, interview and review to the tribunal to which the matter

has been referred and to provide a copy of the report to the legal personal representative of the patient.

29. It appears to me from the facts set out above that the tribunal which sat on the 15th May, 2007 had ample evidence from which

it could be satisfied that the patient was suffering from a mental disorder and the source of this evidence (Dr. Gannon) is identified in

the decision of the tribunal.

30. It does not appear to me that the admission order was spent at the time the tribunal sat. Since it was made on the 26th April

and, by virtue of s.15 of the 2001 Act “Shall remain in force for a period of 21 days from the day of the making of the order…”, it

appears to me that it was, in principle, in force until the 17th May. I do not see that the making of the renewal order under s.15

operated, prior to that date, to bring an end to the detention under the admission order (s.14) or to deprive the Mental Health

Tribunal of jurisdiction. My reasons for this are substantially identical to those of the learned High Court Judge and I wish respectfully

to adopt his decision to the extent set out below as follows:

“There does not seem to be any violence to the Section in concluding that the renewal order takes effect on the

expiration of the initial period of twenty-one days. That renewal order itself must be reviewed not later than twenty-one

days after its date. But there is nothing in the Section which suggests that the renewal order is to have effect sooner

than the twenty-one day period which has been specified to be the lifetime of the admission order. There is nothing to

suggest that an admission order may in some circumstances last for some shorter period… as I have said the sensible

interpretation of the Section, and one which does no violence to the words used by the Oireachtas is that the renewal

order takes effect only at the end of a twenty-one day period and in the event that there is in existence a valid

admission order which has received its review.”

31. On the hearing of this appeal it was, indeed, conceded by Mr. McDonagh S.C. for the applicant that if one limited one’s

considerations of the effect of the admission order to the words of s.15 itself, the conclusion arrived at by the learned High Court

judge might well be correct. But Mr. McDonagh urged that the Section be construed in its context in the statute and that the statute

itself be given a purposive construction. He relied on s.5 of the Interpretation Act, 2005 which provides as follows:

“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) -

(a) That is obscure or ambiguous, or

(b) That on a literal interpretation would be absurd or would fail to reflect the plain intention of -

(i) In the case of an Act to which paragraph (a) of the definition “Act” in s.2(1) relates, the Oireachtas,

or

(ii) In the case of an Act to which paragraph (b) of that definition relates, the Parliament concerned

the provision shall be given a construction that reflects the plain intention of the Oireachtas or Parliament concerned, as

the case may be, where that intention can be ascertained from the Act as a whole.”

32. I am not, however, satisfied that any part of the 2001 Act is ambiguous or obscure, or that it would lead to a result which was

absurd. As for the general policy of the Act, I agree with the finding of the learned trial judge as follows:

“It seems to me that there is a clear sequencing of events contemplated by the terms of Sections 14, 15, 17 and 18 of

the Act. Various periods of detention and extensions of detention are provided for, and none of these periods can be seen

as overlapping. Each new period of detention commences upon the expiry of the previous period. Each period of detention

is required to receive a review also, and it does not seem to me to be contrary to anything stated in the sections under

scrutiny, or the plain meaning intended by the Oireachtas, to conclude that an order renewing an admission order may for

any reason be made a day or some days or at anytime in fact before the review of that admission order has been

completed, since the renewal order would take effect only at the conclusion of the specified twenty-one day period

following the making of the admission order.”

33. It is plain from the face of the decision of the tribunal that the detention they were reviewing was the detention on foot of the

order made under s.14 of the Act, the admission order. On the hearing of this appeal the Court was informed that the renewal order

of the 10th May was itself reviewed by another tribunal on the 29th May.

34. In these circumstances I am satisfied that the applicant is being detained in accordance with law and in his own interest and I

would decline to grant the relief sought.

35. I would however express some anxiety about two aspects of the procedures adopted in this case. The first is the omission of the

Consultant Psychiatrist making the order under s.15 (the renewal order) to inform the patient of the statutory provision under which

he was being detained. The patient had an absolute right to be so informed. If the doctor herself was uncertain as to the power she

is considering exercising, that is a matter which would cast doubt on the question of whether she should proceed to make an order at

all.

36. I note that, at the subsequent Mental Health Tribunal on the 29th May, Dr. Gannon purported to amend her order on the 10th

May by indicating that the power she had then been exercising was that conferred by s.15 of the Act of 2001. But this cannot be

regarded as a satisfactory amendment: there was an obligation on the doctor to give notice of the making of her order to the patient

and to the Mental Health Commission within 24 hours of its making: an amendment made 19 days after the original order was

purportedly made can hardly be regarded as meeting such a requirement.

37. It is important to stress that the requirement to give notice to the patient is a statutory requirement contained in s.16 of the

Act. The terms of s.16 are important. By s.16(2) it is provided that:

“A notice under this Section shall include a statement to the effect that the patient -

(a) is being detained pursuant to s.14 or 15, as the case may be.” (Emphasis added)

38. From that provision it will be observed, firstly, that the obligation to notify the patient of the statutory basis of his detention is

mandatory and not a matter for the discretion of the doctor. Secondly, the information must relate to the detention of the patient at

the time he is served with the notice and not at any earlier or later time.

39. I am also concerned that the legal representative appointed to consider and attend to the interests of the patient was not

informed of the making of the renewal order. It appears that, in the course of his diligent preparations for the hearing of the 15th

May, Mr. Walsh attended at the hospital on the evening of the 14th May and inspected the patient’s file. There he found the renewal

order, thus becoming aware of it for the first time. He could see that the doctor had not committed herself to any view of the

statutory basis for his client’s detention and he was in my view correct and justified in raising this matter before the tribunal. I do not

however consider that the doctor’s omission in this regard could possibly operate to deprive a tribunal of the powers necessary to

carry out its statutory obligations under s.18 of the Act. So to hold would be to compound the confusion which had arisen and to

deprive the patient of his entitlement to a review of the s.14 detention.

40. I am equally concerned that, the doctor having omitted to comply with s.16(2)(a), the tribunal nevertheless certified that s.16

had been complied with. It manifestly had not. The tribunal then went on to certify that, “if there has been a failure to comply with

any such provision, the failure does not affect the substance of the order and does not cause an injustice.”

41. In my view it was illogical to reach both of these findings. If the first finding was correct, the second was otiose. If the proviso

contained in s.18(1)(a)(ii) (that there has been a failure it did not affect the substance of the order or cause an injustice) requires to

be invoked, as it did, then that situation will arise only if there has in fact been a failure to comply with some section of the Act.

Moreover I cannot see how it can be certified, as it was, that if there has been a failure to comply with any such provision then the

failure did not affect the substance of the order and did not cause an injustice, unless the precise failure in question is identified and

its effect ascertained.

42. Mr. McDonagh is in my view correct in his submission that the Act, and in particular Sections 9 - 18 thereof, is intended to

constitute a regime of protection for persons who are involuntarily detained because they are suffering from a mental disorder. That

purpose will not, in my view, be achieved unless the Act is complied with. The Mental Health Tribunal consists of three persons, a lay

representative, a lawyer and a psychiatrist. It is in my view important that, if it is found that a particular section of the Act has not

been complied with, that fact should be ascertained, recorded, and its effect discussed. Only in this way can the Mental Health

Tribunal hope to contribute to a situation of total compliance with the statutory provisions. Since the Act is operated exclusively by

highly skilled professional people it is reasonable to hope that its provisions will be complied with and any difficulties that may be

found in compliance identified and, if necessary, addressed. For example, it might be questioned, on the basis of experience in

operating the Act and further consideration whether the form used to inform a patient of the meeting of an order under s.14 or s.15 is

the best that can be devised in the circumstances having regard to the terms of the statutory provisions themselves.

43. In particular, s.16 requires notice of the making of a renewal order to be given to a patient within 24 hours; the form does not

appear to provide for the possibility that such order may not become the basis for detention for some time into the future.

44. I would dismiss the appeal.