High Court of Ireland Decisions

Neutral Citation No: [2007] IEHC 100

[2007 342/SS]

BETWEEN

J.D.

APPLICANT

-and-

THE DIRECTOR OF THE CENTRAL MENTAL HOSPITAL AND MR BRENDAN LYNCH

RESPONDENT

EX TEMPORE JUDGMENT OF MS JUSTICE FINLAY GEOGHEGAN delivered on the 20th day of March, 2007

The applicant is currently detained in the Central Mental Hospital. On Wednesday last I made a conditional order directing an enquiry under Article 40 of the Constitution following an application brought in his name and based on an affidavit sworn by his solicitor indicating that she was a person assigned by the Mental Health Commission to act as the Mental Health Representative of the applicant at a sitting of the Mental Health Review Tribunal in March 2007.

The certificate as to his detention was made by Dr Helen O'Neill, a consultant psychiatrist with the Central Mental Hospital, in which she indicates that he is held pursuant to an order for his reception as a temporary patient (chargeable) made under Section 184 of the Mental Treatment Act 1945 as amended by Section 72 of the Mental Health Act 2001 and as affirmed by the Mental Health Tribunal on 12th March 2007.

This morning affidavits were filed in court sworn by Dr O'Neill and also by Mr Kearney, solicitor for the Respondents. Mr Kearney's affidavit was for the purposes of setting out certain instructions given to him by Dr Brendan Lynch who made the temporary reception order and also who extended that order in October 2007. Dr Lynch is currently out of the country and has been over the weekend and Mr Kearney has deposed to his instructions from Dr Lynch following a conversation with him as he was leaving the country and has also exhibited the original temporary patient (chargeable) order together with the endorsement.

Whilst the applicant is currently subject to the transitional provisions of the Mental Health Act 2001 it is common case that the validity of the applicant's current detention turns on the validity of the extension of the temporary reception order of 19^th April 2006 made by Dr Lynch on 14th October 2006. The form of endorsement on the temporary order signed by Dr Lynch with his qualifications is "temp. order extended 14/10/06". The issue before the court is whether or not the decision which is reflected by that endorsement is a valid extension of the temporary order under Section 189 (1)(a)(ii) of the Mental Treatment Act 1945 as amended by Section 18(1) of the Mental Treatment Act 1961. This provides:

"(1)(a) Where the chief medical officer of an approved institution becomes of opinion that a person detained in the institution under a temporary chargeable patient reception order or a temporary private patient reception order (including a person who would be so detained but for his being absent, removed or boarded out under Section 203, 204, 208 or 209 of this Act) will not have recovered on the expiration of the period during which pursuant to paragraph (b) of subsection (1) of the Section 186 of this Act, he may be detained.

. . .

(ii) In any other case the chief medical officer may by endorsement on the order extend the said period by a further period not exceeding six months or by a series of endorsements or by the order extend the said period by further periods none of which shall exceed six months and the aggregate of which shall not exceed eighteen months".

It is common case that the applicant was detained pursuant to the temporary (chargeable) patient reception order in St Finian's in Killarney and that Dr Lynch is the chief medical officer of that institution and that the applicant is a person who was transferred to the Central Mental Hospital under Section 208 of the 1945 Act. And accordingly both the applicant and Dr Lynch are prima facie, the correct people to whom Section 189(1)(a) applies.

The issue is whether or not the endorsement made by Dr Lynch on the order complies with the statutory provision that he "may by endorsement on the order extend the said period by a further period not exceeding six months". The endorsement does not on its face specify any period for which the order is to be extended. Counsel for the Respondents, Mr McEnroy, referred the court to the decision of the Supreme Court in Gooden v. Waterford Regional Hospital (Unreported the Supreme Court 21st February 2001) and to the to the judgments of Mrs Justice McGuinness and Mr Justice Hardiman in that decision. Mr McEnroy seeks to rely upon the approach taken by the court in that decision to the construction of Section 194 of the 1945 Act and, their refusal to construe that section literally because it appears that they formed the view that to do so would in effect be contrary to the scheme or intention of the Act and lead to an observed result. As is pointed out in the judgment, if s. 194 were to be construed literally it would have meant that in the period of 72 hours provided for where a voluntary patient gives notice of intention to leave he could not have been made the subject of a reception order under Section 184. Mr McEnroy also relies upon that court's approach to the construction of the Mental Treatment Acts, in particular, in reliance upon the decision of the former Supreme Court in Re: Phillip Clarke [1950] IR 235 where Mrs Justice McGuinness having quoted what I think is a well known passage from O'Byrne J in that judgment then said of the passage:

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

In the extract which she refers O'Byrne J had referred to the legislation as being 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 wellbeing of the public generally". Notwithstanding those principles it is clear from the judgment of the Supreme Court that there are limits to which the Court cannot go in construing an act notwithstanding the paternalistic nature and purpose of the legislation. Those limits are well set out in the differing approach of the Supreme Court in the Gooden case to the construction of Section 194 where they did not apply a literal construction because of what they perceived to be a result which would be clearly contrary to the intention of the scheme of that part of the Act and what is referred to as an absurd result and the construction which they felt constrained to apply to Section 5(3) of the Mental Treatment Act in 1953 by reason of its wording notwithstanding what appears to be certainly Mrs Justice McGuinness' very strong view of the lack of wisdom of the particular provision. The difference is well set out in the short judgment of Mr Justice Hardiman in which he states at paragraph 63:

"Moreover, the result arrived at in this case has involved the application of different techniques of construction to two of the sections involved. In construing the word "received" where it occurs in Section 184(1) of the Mental Treatment Act 1945 as amended (where it is desired to have a person received and detained as a temporary patient and as a chargeable patient in an approved institution ...") an extended construction was required in order to apply the section to a person already physically present in the institution. On the other hand, the circumstances of the case required a literal construction to be applied to the words "convey" where it occurs in Section 5(1)(a) of the Mental Treatment Act 1953. If the section were otherwise interpreted the detention of the applicant would have been in valid for on non compliance with the later provisions of Section 5".

Then he continues at paragraph 64:

"I believe that these techniques and their varied applications are justified in this case on the principle stated by Lord Griffiths in Pepper v. Hart as follows 'the rules of construction are part of the rules of the Court. The literal rule should not be applied if it obtains a result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then this is the appropriate interpretation for the Court to take".

Then he went on to say:

"I believe however that in construing the statutory provisions applicable in this case in the way we have, the Court has gone as far as it possibly could without rewriting or supplementing the statutory provisions. The Court must always be reluctant to be appear to be doing either of these things having regard to the requirements of the separation of powers. I do not know that I would have been prepared to go as far as we have in this direction were it not for the essentially paternal character of the legislation in question here, as outlined in Re: Phillip Clarke [1950] IR 235. The nature of the legislation, perhaps, renders less complicated the application of a purposive construction than would be the case with a statute affecting the right to personal freedom in another context. The overall purpose of the legislation is more easily discerned and where the medical evidence is unchallenged, the conflicts involved are less acute than in other detention cases."

I am, of course, bound by the principles set out by the Supreme Court in these cases and I would respectfully say that in any event I fully agree with the principles. However, applying those principles to the facts of this case and the justification which Mr McEnroy for the Respondents has sought to make out they do not appear to assist him. The difficulty from his perspective is that he has very fairly said that the construction which must be placed on Section 189, subsection (1)(a)(ii) in accordance with its wording is one which requires that the extension be for a specified period. The starting point of the court must be to construe the Act in accordance with the ordinary meaning of the words used, the meaning sometimes referred to as the literal meaning. Mr McEnroy has not referred to any intention of the legislature in the 1945 Act to which it could be said such a construction is contrary, nor indeed to any absurd result. It appears to me that when one looks at the provisions of the 1945 Act to which Section 189 belongs starting with Section 184 that, on the contrary, those provisions emphasise the intention that there be a specified period. It is common case that the section under which the temporary reception order in this instance was made is Section 184, (4)(a) and that requires that Dr Lynch at the original time had formed the view that the applicant is suffering from mental illness and under subparagraph (ii) requires for his recovery not more than six months suitable treatment. That indicates the temporary nature of the order being made.

Further, the opening words of Section 189(1)(a) apply the section only where the chief medical officer is of the view that the person will not have recovered on the expiration of the period referred to under Section 186(1)(b) of the Act. And that, again, refers to a period of six months. Therefore, I am satisfied that I must construe Section 189(1)(a)(ii) as requiring any extension made under that section to be made, firstly, by an endorsement on the order but also that such endorsement on the order extend the period for a specified period. On the facts of this case there is no such specified period in the endorsement. The other submission made by Mr McEnroy is that by reason of the maximum period of six months in s. 189(1)(a)(ii) the court should construe the endorsement as including a six month period because it does not specify any differing period of time. I do not think on a warrant, which is a warrant the purpose of which is to detain somebody and thereby deprive them of their liberty that there is any basis for so construing an endorsement without any specified period of time. Mr McDonagh, on behalf of the Applicant, has referred to the principles in relation to certainty needed in warrants set out in Simple Imports Ltd v. The Revenue Commissioners and I think it is sufficient to say that, in general, the principles are applicable although, the principles which apply to a warrant in accordance with which a person may be deprived of their liberty and, in particular, a person who is detained under the Mental Treatment Acts may be slightly different. But it does not appear to me that it is of any assistance to the Respondents on the facts of this case. If anything, it appears to me that the principles would apply even more strictly where what is being interfered with is the right to liberty as distinct from a right of interference with property.

I have also considered Mr Justice Hardiman's distinction between the application of construction principles to the Mental Treatment Acts and Criminal Acts accordingly to which persons may be deprived of their liberty. But, again, I cannot see any basis upon which having regard to the very clear requirement in Section 189(1)(a)(ii) which I have construed as requiring that the order extend the period for a specified period not exceeding six months that the court could deem an extension which contains no period of time as being deemed to included a six month period. In considering that I have also considered the extract from the decision of Costello P in RT The Director of the Mental Hospital [1995] 2 IR 65 referred to by Mrs Justice McGuinness at page 24 which sets out the limits to which the courts can go on an application under the Mental Health Treatment Acts.

The final matter I should say that I have taken into account is the exhibit to Mr Kearney's affidavit which is the note of Dr Lynch following his visit to the applicant in the Central Mental Hospital on 14th October 2006 which was the basis for his decision to extend the temporary order. That note also contains at the end of it simply the note and "temp order extended" without any time specified. Likewise, I have considered paragraph 5 of Mr Kearney's affidavit but it does not appear to me that the explanation set out therein which I would respectfully say is a misunderstanding by Dr Lynch of the legal requirements of Section 189 can assist the Respondents.

Accordingly, I have reached the conclusion on the only issue which is before the court in this application under Article 40, namely whether or not the Applicant is being detained in accordance with law that the Applicant is not now being detained in accordance with law. It follows that I am bound under Article 40, s.4 to order the release of the Applicant. However, the Applicant is a person who is both seriously mentally ill and is a person who, on Dr O'Neill's reports, who is stated to constitute a risk to other people and in particular to women. In the circumstances, it appears to me that following the decision of the Supreme Court in Re: N and in particular the judgment of the Chief Justice on 13th November 2006 as applied by Mr Justice Clark in JH v. Russell & Others (Unreported the High Court 6th February 2007) that I should now hear the parties as to the order which I might make to give a short period of time to the authorities to consider the appropriate steps which should be taken in the interests of the Applicant and his wellbeing in the context of an order for his release being made under Article 40 s.4.

[Note: Following submission of Counsel an order for the release of the applicant at 4pm tomorrow was made]

Approved: Finlay Goeghegan J