High Court of Ireland Decisions

1. The Applicant is an unemployed man aged 38 who used to reside in the Artane area of Dublin.

The first-named Respondent is the Clinical Director of the Central Mental Hospital, Dundrum in the City of Dublin (referred to as the CMH).

The second-named Respondent is a Consultant Psychiatrist at the CMH.

The third-named Respondents are a statutory board having their principal office at Dr Steevens' Hospital, Dublin. They are responsible for the administration and operation of various types of psychiatric institutions including the CMH and St Ita's Hospital, Portrane in the County of Dublin.

The fourth and fifth-named Respondents are juristic persons and the Attorney General is the proper person to represent the State in this action.

THE APPLICANT'S HISTORY

The Applicant was born on 8 October, 1956 and was brought up in his family home in the Artane area of Dublin. In the early 1980's he was diagnosed as suffering from a mental illness but he was able to lead a fairly normal life residing at home with his parents and enjoying a conventional social life, including being gainfully employed. With the support of his parents, his mental condition was treated and controlled by low doses of medication and by three temporary admissions to St Ita's Hospital in Portrane. On 1 July, 1993, on the application of his parent, the Applicant was admitted to St Ita's on foot of a reception order made under Section 184 of the Mental Treatment Act, 1945 (referred to as the MTA 1945). He was received and detained as a temporary chargeable patient in St Ita's Hospital for the purpose of his receiving treatment. Apparently he was reluctant to undergo electro-convulsive therapy and left St Ita's Hospital after some days in early July 1993 and returned to his home. On or about 7 July, 1993 on the direction of the resident medical superintendent (the RMS) at St Ita's, a party of nurses was sent to bring the Applicant back to St Ita's and they called to his home on several occasions. The Applicant shut himself in his bedroom being still unwilling to have electro-convulsive therapy. The Applicant violently resisted the nurses and stabbed three of them. One of the stabbings was nearly fatal. The Applicant was arrested and conveyed to Raheny Garda Station. No criminal charges were preferred against the Applicant. He was removed to St Ita's Hospital and was subsequently transferred to the CMH under the provisions of Section 208 of the Mental Treatment Act 1945 (as amended). He was detained in Dundrum initially for about a year. He then brought an application to the High Court on the grounds that he was not being lawfully detained in the CMH, in particular that he had been detained for a period in excess of six months since the date of the making of the reception order into St Ita's, and that there had not been compliance with the procedures provided for an extension of the period of six months by virtue of the provisions of Section 189 of the Mental Treatment Act 1945 (as amended). It was held in the High Court that the CMH was a hospital, albeit a psychiatric hospital, which was historically founded to house persons who had committed criminal offences and who had been found by the Courts to be insane according to the criteria of the criminal law; nonetheless, the CMH was a hospital where "treatment not available" in St Ita's was obtainable and it was held that the Applicant might be lawfully received under the provisions of Section 208 of the Mental Treatment Act 1945 (as amended); he was presently in receipt of treatment not available in St Ita's and he was accordingly lawfully detained in the CMH because the time-span of his detention was, by virtue of Section 208(5), coextensive with the duration of his treatment. Flood J thus decided that the Applicant was in lawful detention in the CMH and would remain so while being treated therein and receiving medical treatment and undergoing medical procedures. He added:-

"I am conscious of the fact that the Applicant's right to freedom is at stake and that this is an enquiry into the lawfulness of his detention. I am, however, satisfied that he is presently in receipt of bona fide treatment. I am further satisfied that the protection afforded to patients against arbitrary and unwarranted detention by Sections 189, 217, 218, 222, 236, 237, 250 and 266 of the Mental Treatment Act, 1945 (as amended), while not ideal, are an adequate protection against any form of arbitrary and unlawful detention and give to the Applicant a right to question his continued detention and, if necessary, to bring the matter before the attention of this Court."

The Applicant appealed to the Supreme Court and the grounds of appeal included the following paragraphs, inter alia:-

"2. The learned trial Judge erred in law and in fact in holding that the fact that the Applicant had been detained for a period of longer than six months from the time of his original committal did not in itself render his detention unlawful.

7. The learned trial Judge erred in law in holding that Sections 189, 217, 218, 222, 236, 237, 250 and 266 of the Mental Treatment Act, 1945 (as amended) provided adequate protection to the Applicant against any form of arbitrary and unlawful detention".

The Supreme Court held in an unanimous decision in a judgment delivered on 14 July, 1994 by Blayney J that, firstly, the fact that the CMH was originally the Central Criminal Lunatic Asylum, and that it still retains its close connection with the criminal law, does not prevent it from also being a psychiatric hospital and being a hospital to which it was lawful to transfer the Applicant under Section 208. Secondly, as it was admitted by the Respondents that the original reception order made on 1 July, 1993 was never extended by the chief medical officer of St Ita's, (and it was not contended that it could have been so extended by the chief medical officer of the CMH), it followed that prima facie there was not in existence any valid order authorising the detention of the Applicant and accordingly he was entitled to be released. It had been argued in both Courts that, where a person has been moved to another hospital under Section 208 of the Mental Treatment Act 1945 (as amended) the procedure under Section 189 for granting extensions by endorsing the original order no longer applies, and that the right to detain the person is then simply dependent on the length of time for which he requires treatment. The Supreme Court held that this construction put forward by the Eastern Health Board was incorrect and that the Applicant was entitled to be released. However, Blayney J went on to say:-

"If the Applicant's present mental condition is such as to warrant the making of a new application for a reception order under Section 184 of the Mental Treatment 1945 Act, then it would appear that if his parents are not willing to make such application, urgent consideration should be given to an application being made by the appropriate officers of the Health Board so that a reception order may be made if the chief medical officer sees fit under that section, and possibly a consequential Order under Section 208 with the intention that the treatment which the Applicant is at present receiving, and which the evidence suggests is proving satisfactory, should be continued.

It is important that the people concerned with this matter should clearly understand that this decision and any order consequent upon it which may be made by the Court does not in any way impede such a course of conduct".

I have been told by Counsel that the wider grounds contained in paragraph 7 of the Notice of Appeal were not argued before the Supreme Court because the focus was on the lack of a valid extension order after the initial six months had expired.

After his release by the Supreme Court on 14 July, 1994, the Applicant returned to his home with his parents. At about 6.00 pm on the same day the Applicant was brought to St Ita's Hospital. The Applicant was admitted on foot of an application, recommendation and Order for reception and detention of a person as a person of unsound mind and as a chargeable patient. The recommendation was made pursuant to Section 163 of the Mental Treatment Act 1945. The application had been made by an officer of the Eastern Health Board and the recommendation for reception was signed by Dr MFW and was filled in as follows:-

"I have considered the above application. I examined the said person on 23 June and 13 July, 1994 and

1. I am of opinion that he is a person of unsound mind, he is a proper person to be taken charge of and detained under care and treatment; he is unlikely to recover within six months from the date hereof and is not suitable for admission as a temporary or as a voluntary patient. I have formed this opinion on the following facts:-

(a) Facts observed by myself: serious lack of insight and inconsistencies after eleven months of treatment, including relative to his need for treatment and to the nature and gravity of his actions.

(b) Facts communicated by others, schizophrenia with a psychopathic element and bipolar mood swings with a delusional system; also a history of non-compliance, relapses and grave violence".

Dr M McG, Clinical Director of St Ita's, having examined the recommendation for reception and having examined the Applicant, was satisfied that he was a person of unsound mind and was a proper person to be taken charge of and detained under care and treatment and ordered that the Applicant be received and detained in a mental hospital, namely, St Ita's Hospital, Portrane as a person of unsound mind. The Applicant requested that he be allowed to remain in St Ita's Hospital but his request was refused and he was transferred to the CMH pursuant to Section 208 of the Mental Treatment Act 1945 (as amended). At 6.55 pm on 14 July, 1994 a programme manager with the Eastern Health Board directed and authorised "the removal of the Applicant from St Ita's Hospital, Portrane under Section 208 of the Mental Treatment Act, 1945 to the Central Mental Hospital, Dundrum for special treatment for whatever period of time that will be required". By letter dated 26 October, 1994 the Applicant's solicitor sought information relating to the present detention and treatment of the Applicant, in particular:-

(a) the length of time he was expected to be detained in the CMH;

(b) the nature of the treatment he is receiving in the CMH and

(c) when and by what method his detention at the CMH would be reviewed.

A reply was received from the CMH, Eastern Health Board, by letter dated 15 November, 1994 to the effect that they had not formulated any plan on the length of time that they expected the Applicant to be detained at the CMH, that he was receiving standard medication and other support treatment such as occupational therapy which was appropriate for his condition; and that his detention is reviewed by the staff on a weekly basis. The consultant forensic psychiatrist who signed the letter added:-

"I do not know of any other formal review process that applies to Section 208 patients or indeed Section 207s."

On 13 May, 1995 a Order was made under Article 40(4) of the Constitution that the Medical Director of the CMH produce the Applicant on 28 May, 1995 and certify in writing the grounds of his detention.

THE APPLICANT'S DETENTION

The application for the reception of the Applicant was made by an officer of the Eastern Health Board subsequent to the Applicant's release by the Supreme Court after the officer had received medical advice that the Applicant required in-patient hospital treatment. The recommendation for reception was made by a registered medical practitioner in pursuance of Section 163 of the Mental Treatment Act 1945 as amended. An order for reception and detention in pursuance of Section 171 of the Mental Treatment Act 1945 as amended was made on 14 July, 1994. The Applicant having been received and detained in St Ita's Hospital, Portrane as person of unsound mind and as a chargeable patient was then transferred to the CMH for special treatment for whatever period of time that required pursuant to Section 208. Under Section 208 subsection (5) the Applicant may be kept in the CMH so long as is necessary for the purpose of his treatment and shall then be taken back to St Ita's, being the place from which he was removed, unless it is certified by a registered medical practitioner that his detention is no longer necessary. The nub is that under Section 172(1) he is detained until his removal or discharge by proper authority or his death.

APPLICATION UNDER ARTICLE 40(4) OF THE CONSTITUTION.

This case comes before the Court as an enquiry under Article 40(4) of the Constitution. The gist of it is a challenge to the lawfulness of the detention of the Applicant as an involuntary patient under the code for Reception and Detention of Involuntary Patients under the MTA 1945 (as amended). Counsel for the Applicant has mounted a two-pronged challenge.

The first prong is based on the fact that there is no provision for a judicial intervention and process to determine the rights of the involuntary patient. He contends that since such a determination is, in reality, an administration of justice, it necessarily requires a judicial intervention and ruling in accordance with Article 34 of the Constitution.

The second prong of the challenge is based on the indefinite nature of the power of detention and the lack of an independent review procedure which might justify continued detention. It is contended that there is a basic flaw in the procedure in that there is no adequate process for an independent adjudication; that that there is a lack of a review procedure, and that there is a dearth of a participatory role on the part of the patient in the existing procedures, which Counsel characterised as a "paternalistic code".

THE LOCUS STANDI OF THE APPLICANT

As a preliminary point, Counsel for Ireland and the Attorney General suggested that the Applicant had no locus standi in that there was no averment in his application suggesting that he was a suitable person to be discharged from mental hospital and, secondly, he had not availed of the existing procedures for review of his situation. Since this matter comes before the Court by way of an application under Article 40.4.2 of the Constitution, the inquiry required may be wide-ranging. Since the liberty of a person alleged to be disadvantaged and suffering from mental disorder is at stake, in my view the Court should take this preliminary hurdle in its stride and proceed with the inquiry. He is entitled to go at the heart of the matter and to assert that the statutory provisions under which he was and is detained are repugnant to the Constitution. A number of cases support this approach.

In East Donegal Co-operative Livestock Mart Limited and Others v The Attornev General [1970] IR 317 at page 338 Walsh J discussed the right of a citizen to challenge the validity of a statute. At page 338 he said:-

"With regard to the locus standi of the Plaintiffs the question raised has been determined in different ways in countries which have constitutional provisions similar to our own. It is unnecessary here to go into this matter in detail beyond stating that at one end of the spectrum of opinions on this topic one finds the contention that there exists a right of action akin to an actio popularis which will entitle any person, whether he is directly affected by the Act or not, to maintain proceedings and challenge the validity of any Act passed by the Parliament of the country of which he is a citizen or to whose laws he is subject by residing in that country. At the other end of the spectrum is the contention that no one can maintain such an action unless he can show that not merely do the provisions of the Act in question apply to activities in which he is currently engaged but that their application has actually affected his activities adversely. The Court rejects the latter contention and does not find it necessary in the circumstances of this case to express any view upon the former. Rights which are guaranteed by the Constitution are intended to be protected by the provisions of the Constitution. To afford proper protection, the provisions must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees and to put to the test an apprehended infringement of these guarantees".

The Respondents have to concede that the Applicant is held under the provisions of the Mental Treatment Act 1945, as amended, and that he is detained without having had the benefit of a judicial procedure and in the absence of an independent or automatic review process. The Applicant clearly has a very real personal interest in the constitutional validity of the relevant provisions of the Mental Treatment Act 1945, as amended, as he is detained without judicial process or independent automatic review thereunder. Nevertheless, the Respondents maintain that he lacks adequate standing to bring the present application by way of an inquiry under Article 40 because he has neither availed of the procedures provided under the Mental Treatment Act 1945 nor exhausted them. Counsel for Ireland and the Attorney General relies on Cahill v Sutton [1980] IR 269, which, apart from exceptional cases, limited locus standi to persons who could point to a detriment, actual or apprehended, to themselves resulting from the operation of the Act under challenge. At page 286, Henchy J outlined the basic principles of locus standi as follows:-

"The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the Court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interests have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute.

On that test the Plaintiff must be held to be disentitled to raise the allegation of unconstitutionality on which she relies. Even if the Act of 1957 contained the saving clause whose absence is said to amount to an unconstitutionality, she would still be barred by the statute from suing. So the alleged unconstitutionality cannot affect her adversely, nor can it affect anybody whose alter ego or surrogate she could be said to be. As to such other persons, although the statute was passed in 1957, the Plaintiff is unable to instance any person who has been precluded from suing for damages because of the absence from the statute of the saving clause for which she contends. Therefore, her case has the insubstantiality of a pure hypothesis. While it is true that she herself would benefit, in a tangential or oblique way, from a declaration of unconstitutionality, in that the consequential statutory vacuum would enable her to sue, that is an immaterial consideration in view of her failure to meet the threshold qualification of being in a position to argue, personally or vicariously, a live issue of prejudice in the sense indicated".

In the same case at page 276 Chief Justice O'Higgins said:-

"This Court's jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to operate and those rights and liberties which are both the heritage and the mark of free men would be endangered. However, the jurisdiction should be exercised for the purpose for which it was conferred -- in protection of the Constitution and the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busybody and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizen's shield and protection becoming debased and devalued.

This is not to say, however, that, if those whose rights are affected cannot act or speak for themselves, the Courts should refuse to hear one who seeks to speak or act for them, even if his own rights are not affected. Such exceptional cases, hopefully rare, must be entertained".

Counsel referred to E v E [1982] ILRM 497 as an example of a case in which the Applicant had no locus standi to challenge the legal aid scheme because he had not exhausted the procedure for obtaining free legal aid, which was open to him under the legal aid scheme, before coming to Court to assert his rights. O'Hanlon J at page 500 said:-

". . . the Defendant contended that the failure of the State to provide him with free legal aid, involved not merely a breach of his rights under the European Convention, but also of his guaranteed right of access to the High Court to defend and vindicate his personal rights and those of his children under the Constitution -- that 'access' in this context must mean effective access aided, if necessary, by legal representation. Reference was made to the decisions of Kenny J in McCauley v Minister for Post and Teleqraphs [1966] IR 345 at 357, and of the Supreme Court in O'Brien v Keogh [1972] IR 144 (O'Dalaigh CJ at 155).

The evidence before me, however, was not sufficient to satisfy me that the Defendant had exhausted the procedure which was open to him under the legal aid scheme, for obtaining free legal aid, before coming to Court to assert his rights under the Constitution, and accordingly I would accept the counter-argument put forward by Mr John Cooke on behalf of the Attorney General that locus standi had not been established for the purpose of maintaining such proceedings under the Constitution (Cahill v Sutton [1980] IR 269)".

The Constitution guarantees that no citizen shall be deprived of his personal liberty save in accordance with law. The Applicant says that he has been detained without trial or judicial process against his will under a statutory regime provided in the Mental Treatment Act 1945, as amended, which makes no provision for a judicial procedure at the time of his initial detention or subsequently. Nor is there any provision for the review by a judicial or quasi-judicial body of the necessity for his detention. There are safeguards built in to the Act and if he were aware of the procedures, and capable of taking advantage of them, no doubt he could make representations to the RMS, the Inspector of Mental Hospitals, the Minister for Health and the President of the High Court. However, in my view, he is entitled to go direct to the heart of the matter and to challenge the constitutional validity of the provisions of the Mental Treatment Act 1945 as amended under which he has been deprived of his liberty. In other words, it may well be that the Applicant has not availed of the facility to send an unopened letter to the Inspector of Mental Hospitals, the Minister for Health or the President of High Court but, if the complaint in his letter is not about the treatment which he is receiving or the stage of his recuperation, but is rather a complaint directed at the constitutionality of the statute under which he is being detained, then it is both appropriate and reasonable for him to make a direct challenge to the legality of his detention by way of an application under Article 40 of the Constitution.

THE ROLE OF THE EUROPEAN CONVENTION AND PRINCIPLES OF INTERNATIONAL LAW

A further preliminary point which must be considered by this Court is the issue of whether it is proper, having regard to the Constitution, to refer to or apply the principles contained in the European Convention for the Protection of Human Rights or the general principles of International Law pertaining to protection of persons with mental illness.

Counsel for the Applicant referred to various provisions of the European Convention for the Protection of Human Rights (1953) and referred to the following Articles as being relevant to patients with mental disorder:-

Article 3 which states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Article 5.1. This Article guarantees the "right to liberty and security of the person" but defines a certain number of exceptions "in accordance with a procedure defined by law" of which Article 5.1(e) includes the lawful detention of "persons of unsound mind".

Article 5.2 states that "everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charges against him." This is interpreted to cover detained psychiatric patients as well as accused persons.

Article 5.4 states that "everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful."

I agree with the reasoning of O'Hanlon J that the Court is entitled to look at this Convention as a guide on matters of public policy. However, care must taken to realise that the Convention is a code of legal principles which are not as yet enforceable in the Irish Courts. This has been laid down in a succession of Supreme Court judgments. In Desmond v Glacken, [1992] ILRM 490 at page 513 O'Hanlon J explained the situation in a case in which he construed the common law principles on contempt of Court in the context of the guarantee of freedom of expression in Article 10 of the Convention; he said:-

"As Ireland has ratified the Convention and is a party to it, and as the law of contempt of Court is based (as was stated by Lord Reid) on public policy, I think it is legitimate to assume that our public policy is in accord with the Convention or at least that the provisions of the Convention can be considered when determining issues of public policy. The Convention itself is not a code of legal principles which are enforceable in the domestic courts, as was made clear in In re O Laighleis [1960] IR 93, but this does not prevent the judgment of the European Court from having a persuasive effect when considering the common law regarding contempt of Court in the light of the constitutional guarantees of freedom of expression contained in our Constitution of 1937. Henchy J expressed the view in State (Director of Public Prosecutions) v Walsh [1981] IR 412 at 440, that there was a presumption that our law on contempt is in conformity with the Convention, particularly Articles 5 and 10(2)".

There was conflict between Counsel as to whether and to what extent the Court should be influenced by consideration of the Articles of the European Convention on Human Rights and also the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (adopted by the General Assembly, 17 December, 1991). In addition, there was also disagreement as to the weight which this Court should attach to two decisions of the European Court of Human Rights in X v The United Kingdon, [1981] 4 EHRR 188 and Winterwerp v The Netherlands, [1979] 2 EHRR 387 both of which deal with the right to liberty of a person detained as a person of unsound mind. I propose to set out the relevant provisions for the sake of completeness and because this matter is likely to be considered by the Supreme Court.

The relevant UN Principles are Principle 16 dealing with involuntary admission, Principle 17 dealing with review bodies and Principle 18 dealing with procedural safeguards:-

Principle 16 -- Involuntary Admission

1. A person may

(A) be admitted involuntarily to a mental health facility as a patient; or

(B) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorised by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

(a) that, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

(b) that, in the case of a person whose mental illness is severe and whose judgment is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative. In the case referred to in sub-paragraph (B), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place until the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

Principle 17 -- Review Bodv

1. The review body shall be a judicial or other independent impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient shall be admitted to, or be retained in, a mental health facility.

Principle 18 -- Procedural Safeguards

1. The patient shall be entitled to choose and appoint a Counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a Counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they should be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's Counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's Counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and Counsel. When any part of a document is withheld from a patient, the patient or the patient's Counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and Counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision, whether the hearing or any part of it shall be in public or in private and may be publicly reported, shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others, appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. The State shall make these principles widely known by appropriate and active means.

Principle 24 -- Scope of Principles Relating to Mental Health Facilities

These principles apply to all persons who are admitted to a mental health facility.

Counsel for Ireland and the Attorney General submits that the effect of the judgments in In re Philip Clarke and in Gallagher's case (see below) cannot be challenged by calling on the provisions of the European Convention for the Protection of Human Rights, 1953 or the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care adopted by the General Assembly on 17 December, 1991. He referred to the Constitution, Article 15(2)(i) -- "The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State". He contends that any encroachment on the powers of the Oireachtas, as having the sole and exclusive power of making laws, is confined by Article 29(6).

He relies on Article 29(6) -- "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas". Neither the European Convention for the Protection of Human Rights nor the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care have been made part of our domestic law by the Oireachtas. Counsel referred to a number of cases as reflecting the thinking of the Courts as to the effect of Article 29.6. In re O Laighleis [1960] IR 93, the internment provisions of the Offences against the State (Amendment) Act, 1940 were challenged in reliance on the European Convention on Human Rights, which Ireland had signed in 1950 and ratified in 1953. Internment had been brought in and was challenged on the basis that preventive detention violated the provisions of Articles 5 and 6 of the Convention in respect of the right to personal liberty and the right to a judicial hearing in connection with any criminal charge. Chief Justice Maguire delivered the judgment of the Supreme Court on 3 December, 1957 in the course of which he said:-

"The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of Ireland -- if they be at variance with that law -- is, however, the terms of the Constitution of Ireland. By Article 15(2)(1) of the Constitution it is provided that "the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State." Moreover, Article 29, the Article dealing with international relations, provides at S (6) that 'no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas'.

The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or imposes obligations additional to those of domestic law.

No argument can prevail against the express command of Section (6) of Article 29 of the Constitution before Judges whose declared duty it is to uphold the Constitution and the laws.

The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the Court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic court administering domestic law. Nor can the Court accept the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with a Convention entered into ten years afterwards. The intentions of the Oireachtas must be sought in the conditions which existed when it became law".

The Mental Treatment Act 1945 had been enacted well before the Convention which came into force on 3 September, 1953. Counsel also relied on Application of Woods [1970] IR 154, in which the Applicant applied for habeas corpus challenging the legality of his detention on several grounds among which was that a sentence of penal servitude which had been passed on him was repugnant to the Constitution and also "contrary to Article 4(1) of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December, 1948 and accepted and ratified by our government on 25 February, 1953". The Supreme Court pointed out that "penal servitude" had nothing to do with the "servitude" or slavery which Article 4 of the Declaration prohibited; and also pointed out that the declaration was not part of the domestic law of Ireland. Chief Justice O'Dalaigh at page 161 said:-

"Ground 8 -- "That a sentence of penal servitude is repugnant to the Constitution and contrary to Article 4(1) of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on the 10 December, 1948 and accepted and ratified by our government on the 25 February, 1953."

First, the Constitution contains no provision which could be considered as rendering a sentence of penal servitude unconstitutional. In fact, it may be pointed out that the Rules for the Government of Prisons, 1947, contain no special or exceptional provisions for prisoners serving sentences of penal servitude. Secondly, the United Nations Universal Declaration of Human Rights is not part of the domestic law of Ireland: see Article 29 s 6, of the Constitution and the judgment of this Court in In re O Laighleis. Article 4 of the Universal Declaration of Human Rights says:-

"No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

A sentence of penal servitude in our law, it may be pointed out, has nothing to do with the 'servitude' referred to in Article 4 of the Declaration. A sentence of penal servitude is no more and no less than a sentence of imprisonment. The word 'servitude' in Article 4 means the condition of being a slave or serf; slavery and serfdom are in another world entirely"."

Similar views were expressed by Walsh J at page 165 of the same case:-

"Ground No 8 raises a matter which has already been decided by the former Supreme Court in In re O'Laighleis on the 3 December, 1957 in respect of the European Convention on Human Rights. Article 4(1) of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on the 10 December, 1944 has never become part of the domestic law of this State. The Applicant cannot, therefore, invoke it in this Court or in any other Court established under the Constitution and exercising jurisdiction in the State unless and until the provisions sought to be relied upon shall be made part of the domestic law of the State by the Oireachtas. See Article 29, s 6, of the Constitution. I agree with all the reasons given in the judgment of the former Supreme Court in In re O Laighleis dealing with this point."

In Norris v Attornev General [1984] IR 36 the Plaintiff sought to rely on a decision of the European Court of Human Rights, namely Dudgeon v United Kingdom [1981] 4 EHRR 149, to the effect that Northern Ireland laws penalising homosexual acts were inconsistent with the European Convention on Human Rights and submitted that "since Ireland confirmed and ratified the Convention, there arises a presumption that the Constitution is compatible with the Convention and that, in considering a question as to inconsistency under Article 50, regard should be had as to whether the laws being considered are consistent with the Convention itself". Chief Justice O'Higgins with whom Finlay P and Griffin J agreed, rejected this submission and expressly approved the views expressed by Maguire CJ in the O'Laighleis case. At page 68 Henchy J said:-

"Notwithstanding the submission of the Plaintiff's Counsel to the contrary, the constitutional question that calls for resolution is unaffected by the fact that the precise statutory provisions in question in this case were held by the European Court of Human Rights in Dudgeon v United Kingdom [1981] 4 EHRR 149 to be in breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That Convention, as has been held by this Court, although it has by its terms a binding force on the Government of this State as one of its signatories, forms no part of the domestic law of this State. Moreover, Article 8 of the Convention has no counterpart in our Constitution. Since the constitutionality of the impugned statutory provisions is the only issue raised in this litigation, the touchstone of constitutionality must be held to reside solely in our Constitution. That does not mean that this Court is not open to the persuasive influence that may be drawn from decisions of other Courts, such as the European Court of Human Rights, which deal with problems similar or analogous to that now before us. At the end of the day, subject to such influences or methods as are inherent in the judicial process, the task of the Court is to determine the actual and potential effects on the Plaintiff of the impugned statutory provisions and then, having viewed those effects in the light of the invoked constitutional protections in their present day connotation and in the context of the Constitution as a whole, to decide whether there is a repugnancy between what the statutory provisions have prejudicially done to the Plaintiff and what the constitutional provisions intended him to be protected against. If such repugnancy is found to exist, the challenged statutory provisions cannot be adjudged to have survived the enactment of the Constitution".

In O'Domhnaill v Merrick [1984] IR 151, a case involving delay in the bringing and processing of a claim for injury, Henchy J at page 158 made reference to the Convention and said:-

"As to a Plaintiff's right to proceed with an action brought before the period of limitation has run out, the Courts in the past have been reluctant to exercise their equitable jurisdiction to terminate stale claims at a time when the statutory period of limitation has yet to expire. However, the Statute of Limitations, 1957, was enacted in a legal milieu which makes such reluctance to intervene inappropriate. Apart from implied constitutional principles of basic fairness of procedures, which may be invoked to justify the termination of a claim which places an inexcusable and unfair burden on the person sued, one must assume that the statute was enacted (there being no indication in it of a contrary intention) subject to the postulate that it would be construed and applied in consonance with the State's obligations under international law, including any relevant treaty obligations. The relevance of that rule of statutory interpretation in this case lies in the fact that Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides:-

'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law'.

I have supplied the emphasis.

While the Convention is not part of the domestic law of the State, still, because the Statute of Limitations, 1957, was passed after this State ratified the Convention in 1953, it is to be argued that the statute, since it does not show any contrary intention, should be deemed to be in conformity with the Convention and should be construed and applied accordingly. However I do not wish to express a concluded opinion on the point, as the application of the Convention in this case has not been argued".

Accordingly while this Court can look to the European Convention and the United Nations principles as being influential guidelines with regard to matters of public policy, nevertheless in the circumstances of this case in which there is a challenge to the constitutionality of provisions of the Mental Treatment Act 1945 as amended, such Conventions may not be used as a touchstone with regard to constitutionality. This Court is at present bound to approach this issue wearing blinkers as to Conventions setting out internationally accepted norms and standards. For the Convention has never been incorporated into domestic law and while it applies to Ireland, it does not apply within Ireland. Thus an Irish citizen who believes the Irish State is infringing the Convention, as in Norris v Attorney General [1984] IR 36 may bring a case against Ireland for failing to respect obligations under this Convention; but Senator Norris could not rely on the Convention in the Irish Courts because under domestic law the State is not bound to comply with the Articles of the Convention.

RELEVANT ARTICLES OF THE CONSTITUTION OF IRELAND

Article 34

1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

3.1 The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.

2 Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.

Article 40

1. All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

4.1 No citizen shall be deprived of his personal liberty save in accordance with law.

2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.

3. Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.

Accordingly, if this Court is satisfied that the Applicant is being detained in accordance with the Mental Treatment Acts but that the relevant provisions of the Mental Treatment Act 1945 are invalid having regard to the provisions of the Constitution, this Court must refer the question of the validity to the Supreme Court by way of case stated.

Counsel for the Applicant also relied on the Preamble to the Constitution especially the fifth paragraph thereof:-

"And seeking to promote the common good with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution."

He stresses the Constitutional objective that the dignity and freedom of the individual may be assured. He also invokes:-

Article 6

1. All powers of government, legislative executive and judicial, derive, under God, from the people whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

Article 37

1. Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

(The underlined passages are referred to below when citing the Solicitors' Act Case and the judgment of Kingsmill Moore J)

The Applicant contends that neither the safeguards included in the Mental Treatment Acts nor the right to apply for habeas corpus at common law or for an inquiry under Article 40, taken separately or together, provide adequate protection to vindicate the right to liberty of a person detained under the provisions of the Mental Treatment Acts.

THE HISTORY OF THE MENTAL TREATMENT ACTS

Until the 18 century the mentally disordered were not given therapeutic treatment but were left to fend for themselves in society or were detained in workhouses or prisons. Those suffering from mental illness included people with social and emotional maladjustment interfering with the ordinary conduct of life, where the disorder was psychological in origin rather than organic. It also included those suffering from mental handicap, the mentally retarded who are sound physically but have a deficiency based on a learning disability and probably no organic damage, and also the mentally defective whose impairment was caused by brain injury or organic defect. In "Fools and Mad -- a History of the Insane in Ireland", Dr Joseph Robins writes that in pre-christian Ireland one of the most dreaded powers attributed to the highly respected and greatly feared druidic priests was that of causing madness. A druid prepared a "madman's wisp", a ball of straw or grass, which was believed to produce madness by throwing it in the victim's face. Eventually in the 18 and 19 century asylums were built. Control rather than therapy tended to be the objective of the asylum system.

In November 1731 the Dean of St Patrick's had announced his intention of providing in his will for the establishment of a lunatic asylum by writing in the final quatrain of a cynical poem, "Verses on the death of Doctor Swift":

"He gave the little wealth he had

to build a house for fools and mad

and showed by one satiric touch

no nation wanted it so much."

In 1757 St Patrick's Hospital was opened in Dublin, founded as a result of the initiative given by the provision in the will of Jonathan Swift. Care tended to be of a paternalistic nature in that the mentally ill were locked up for their own good and not necessarily for treatment.

According to Dr Robins, at the beginning of 1837 there were over 1,600 lunatics in the overcrowded district institutions and another 1,500 in the jails, houses of industry and private asylums. Any journeyman barrister who has travel led the roads of Ireland will have been impressed by the number and size of the asylums built around the middle of the last century. By 1901 there were almost 17,000 inmates in asylums originally planned for less than 5,000 and the total insane population then in institutions or at large was calculated at over 25,000. A perusal of the 18 and 19 century statutes dealing with the committal of dangerous lunatics indicates that there was a process for judicial adjudication in that each prospective detainee had to be brought before two justices of the peace. For example, Section 10 of the Dangerous Lunatics Act, 1867 states:-

10. From and after the 1 day of January, One Thousand Eight Hundred and Sixty Eight whenever any person shall be brought before any two justices of any county of a city, county of a town, city or town, and it shall be proved to their satisfaction that such person was discovered and apprehended under circumstances denoting a derangement of mind, and a purpose of committing some crime for which, if committed, such person would be liable to be indicted, the said justices shall call to their assistance the medical officer, or, if there be more than one, the nearest available medical officer of the dispensary district in which they shall be at the time, and if there shall not be any such medical officer available, then the nearest available medical officer of any neighbouring dispensary district, who shall examine such person without fee or reward; and if such medical officer shall certify that such person is a dangerous lunatic or a dangerous idiot, it shall be lawful for the said justices, by warrant under their hands and seals, to direct that such person shall be taken to the lunatic asylum established either wholly or in part for the county, county of a city or county of a town in which he shall have been apprehended; and every such person shall remain under confinement in such asylum, and be there maintained, in like manner and subject to the same conditions as if such person had been removed from any jail to such asylum by virtue of the warrant of the Lord Lieutenant under the provisions of the recited Act of the 1 year of her present Majesty Chapter 27: provided always, that nothing herein contained shall be construed to restrain or prevent any relation or friend from taking such person under his own care and protection if he shall enter into sufficient recognizance for his or her peaceable behaviour or safe custody before two justices of the peace, or the chairman of the Court of Quarter Sessions of the county in which such person shall be confined, or one of the judges of Her Majesty's Superior Courts at Dublin.

Mark Finnane in "Insanity and the Insane in Post-Famine Ireland" points out that while the justices were finally responsible for a lunacy committal, the actual role of the magistrates was probably subsidiary to that of the police, who had the job of arresting, conveying and restraining the person, and the doctors whose certificates, based variously on careful or cursory examination, were the formal declaration of insanity.

Counsel referred to the State's exercise of the parens patriae power. This power derives from the medieval concept of the sovereign's paternal jurisdiction over subjects such as lunatics and idiots. Of recent times this power has been vested in the State and has been used to justify the involuntary detention of the mentally ill for their own good. There is a distinction between this type of State control of the mentally ill and the use of police power, as in the Dangerous Lunatic Acts, which is directed towards protecting the public at large. In practice, however, police powers were frequently invoked for parens patriae purposes and this was certainly the case in 19 century Ireland.

I have delved into history to set out briefly the background against which the Mental Treatment Act 1945 was enacted. Because of mental disorder a person may not be capable of understanding that he or she requires treatment to assist recovery or at least protection from the consequences of his or her actions. Since the early 19 century, the State has exercised its powers to protect such people against the consequences of their own behaviour and against abuse and exploitation in society. The mentally disordered have been gradually removed from prisons, workhouses and other inappropriate places to specialised institutions which were, by the standards of the day, managed in a humane way. Despite the dramatic improvements in the treatment and management of mental disorders of recent times, the problem still remains as to how the relatively small number of people with mental disorder who refuse or who are incapable of seeking treatment or protection in their own interest, or that of others, should be managed. A society which values the rule of law must define and safeguard the rights of such people, particularly in an era when the exploitation of people with mental illness and mental handicap, and the abuse of psychiatry for political purposes, are well known to occur in other countries.

THE FRAMEWORK OF THE MENTAL TREATMENT ACTS

The Mental Treatment Act 1945, as amended, forms the legislative basis for the mental health services in Ireland. The MTA 1945 was innovative and enlightened in its day. The former procedure whereby patients were committed to psychiatric hospitals on the order of two magistrates (subsequently Peace Commissioners) was repealed and the Mental Treatment Act 1945 set out the procedures for the admission of both voluntary patients and involuntary patients, other than mentally disordered persons charged with criminal offences and Wards of Court. The Mental Treatment Act 1945 specified two main classes of patients received in psychiatric care -- the voluntary and the non-voluntary patients. There are two categories of non-voluntary patients -- temporary patients and those certified as persons of "unsound mind". Tomkin and Hanafin in "Irish Medical Law", 1995 at page 120 say:-

"This legislation is n example of the parens patriae model of committal of the mentally disordered. This model stresses the State's interest in caring for those who cannot care for themselves even if this necessitates acting against the wishes of the patient. The rationale behind this approach is that the patient needs this treatment, but due to his psychiatric condition is unable to seek that treatment voluntarily. This gives the medical practitioner a wide discretion in relation to committing the patient for treatment."

A "temporary patient" is defined as a person who requires to be detained for treatment and is believed to require not more than six months suitable treatment for recovery or is, in the alternative, an addict who is believed to require at least six months preventive and curative treatment. The maximum period of detention of a temporary patient is six months, but if, towards the end of that six month period, the chief medical officer of the institution is of the opinion that the patient has not recovered, he may extend the original period of detention for a further six months up to a total of twenty-four months, or twelve months in the case of an addict. A person of unsound mind is broadly defined in the MTA 1945 as a person who requires detention for protection and care, and who is unlikely to recover within six months. Section 162 deals with a chargeable patient reception order and Section 163, as amended by Section 7 of the Mental Treatment Act 1961, provides for an application for recommendation for reception into a psychiatric hospital. Under Section 163(2) the recommendation must certify that the person is of unsound mind. The medical officer of the psychiatric hospital must examine the person to whom an application for admission as a person of unsound mind refers before he or she signs the reception order. A person of unsound mind may be detained for an indefinite period.

There are a number of safeguards for the patient. I have already adverted to the right of the patient or someone acting on the patient's behalf to apply to the High Court for an Order of Habeas Corpus both under common law and under the provisions of Article 40.4.2 of the Constitution. This initiates an inquiry as to the lawfulness of the patient's detention and is undoubtedly a speedy and efficacious remedy. However, the situation of a mental patient who is illiterate, harmless and without kith or kin to initiate such an inquiry on his behalf by way of habeas corpus perhaps poses the problem in a stark form. Such a patient may not be aware of his or her rights to seek habeas corpus and may be incapable of the necessary written or verbal communication to trigger such an inquiry. There are other safeguards built into the Mental Treatment Act 1945 (as amended). A patient may apply to the Minister for Health for an Order under Section 222 of the MTA 1945 for the examination of a detained person by two medical practitioners, and the Minister on consideration of their report, if he or she thinks fit, may direct the discharge of the patient. Section 12 of the MTA 1945 provides for the appointment of an Inspector of Mental Hospitals who is a registered medical practitioner and who is normally a psychiatrist. The Inspector must visit all public mental hospitals at least once a year and private hospitals once every six months. He has a duty to give special attention to the state of mind of any patient detained where he has reason to doubt the propriety of the detention, or when he is requested to by the patient, or by any other person. The Inspector must also ascertain whether the periods of detention of any temporary patients have been extended since his previous visit. If so, he must give particular attention to the patients concerned. The Inspector may report to the Minister on the propriety of any detention, and the Minister, acting on that report, may order the discharge of the patient. Any relative or friend of a person detained may make application to the RMS under Section 220 of the Mental Treatment Act 1945 for the discharge of a patient to his or her care. The application must be granted unless the RMS is of the view that the person will not be properly taken care of or certifies that the patient is dangerous or otherwise unfit for discharge, in which event, an appeal against refusal of the application lies to the Minister.

Section 189 of the Mental Treatment Act 1945 obliges the RMS, when he extends the period of detention of a temporary patient, to advise the patient and the person who applied for the original reception order that either of them may make their objections known to the Inspector of Mental Hospitals. On receipt of an objection, the Inspector must take such steps as he deems necessary to satisfy himself of the propriety or otherwise of the continued detention of the patient.

Every patient has the right under Section 266 of the Mental Treatment Act 1945 to have a letter forwarded unopened to the Minister for Health, the President of the High Court, the relevant Health Board, the Inspector of Mental Hospitals or, if the patient is a Ward of Court, to the Registrar of Wards of Court. The Inspector may report to the Minister on the propriety of the detention of a patient and the Minister may direct his discharge. The President of the High Court may require the Inspector to visit and examine any patient detained as a person of unsound mind and to make a report.

In 1981 the Health (Mental Services) Act was passed by the Oireachtas and signed by the President but despite its enactment has never been brought into force. A foot note to the 3rd edition of Professor Kelly's The Irish Constitution (edited by Hogan & Whyte) at page 867 puts it that this Act has been left on "the legislative version of Death Row" and it is now unlikely it will be activated by the necessary statutory instrument. As Costello P aptly said in RT v The Director of the Central Mental Hospital (unreported delivered 16 February, 1995) "The best is the enemy of the good. The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered (paragraph 16.13 of Green Paper). The prolonged search for excellence extending now for over fourteen years has had most serious consequences for the Applicant herein." The 1981 Act provided for the registration and supervision of psychiatric institutions, introduced new admission and discharge procedures, set out safeguards for patients, and modified the procedure for taking civil proceedings in connection with mental treatment. The main changes introduced were the limitation of compulsory powers of admission and detention, the abolition of compulsory powers of treatment of alcoholics and drug addicts, a change in the requirements of two doctors to certify a patient, a requirement that the doctor state reasons for certification, and the establishment of psychiatric review bodies. By passing the Health Mental Services Act, 1981 the legislature clearly acknowledged the need for remedy by bringing in a reform of the criteria for involuntary admission, changing the procedures for involuntary admission and detention of patients, and by providing for an appeal against detention and for an automatic review of long term detention by a specialised tribunal. However, this does not necessarily entail that the existing legislative regime is so constitutionally frail as to be found wanting when tested against the touchstone of the Constitution.

THE RELEVANT STATUTORY PROVISIONS

The relevant provisions of the Act are to be found in Parts XIV and XVI. These provisions must be read in the context of the purposes and in the light of the entire of the statute viewed as a whole. While Reception Orders are dealt with under Part XIV, the relevant statutory provisions, which are not just under Part XIV, are set out and the terminology explained.

(a) There was an institution called the "Central Criminal Lunatic Asylum" established by the Central Criminal Lunatic Asylum (Ireland) Act, 1845. This institution is now known as the Central Mental Hospital (Health Mental Services Act, 1961, Section 39) and is now administered by the Eastern Health Board (Section 44 Health Act, 1970).

(b) A "chargeable patient" is a patient who is receiving mental hospital assistance and who is unable to provide the whole of the cost of such assistance (Section 3 of the Mental Treatment Act 1945). A "chargeable patient reception order" means a reception order made in respect of a "chargeable patient" under Chapter 1 of Part XIV of the 1945 Act.

(c) Where it is desired to have a person received and detained as "a person of unsound mind" and as a chargeable patient, application in the prescribed form for the reception and detention of the person is made under Section 162 of the Mental Treatment Act 1945. If such an Order is made, then the mental hospital authority may receive and take charge of the person to whom the Order relates and detain him "until his removal or discharge by proper authority or his death" (Section 172(1)).

The relevant provisions of Section 162 of the MTA 1945 (as amended by Section 6 of the MTA 1961) are as follows:-

(1) Where it is desired to have a person received and detained as a person of unsound mind and as a chargeable patient in a district mental hospital for the mental hospital district in which he ordinarily resides, application in the prescribed form may be made to a registered medical practitioner (not being a registered medical practitioner disqualified in relation to such person) for a recommendation (in this Act referred to as a recommendation for reception) for the reception and detention of such person as a person of unsound mind in such district mental hospital.

(2) An application for a recommendation for reception may be made --

(a) by the husband or wife, or a relative of the person to whom the application relates, or

(b) at the request of the husband or wife or a relative of such person, by the appropriate assistance officer, or

(c) subject to the provisions of the next following subsection, by any other person.

(3) Where an application for a recommendation for reception is not made by the husband or wife or a relative of the person to whom the application relates or, at the request of the husband or wife or a relative of such person, by the appropriate assistance officer, the application shall contain a statement of the reasons why it is not so made, of the connection of the applicant with the person to whom the application relates, and of the circumstances in which the application is made.

(4) An application for a recommendation for reception shall not be made unless the applicant is at least twenty-one years of age and has, within fourteen days before making the application, seen the person to whom the application relates.

(5) An application for a recommendation for reception shall be accompanied by a statement of particulars relative to the person to whom the application relates in the prescribed form.

(6) A registered medical practitioner shall, for the purposes of this section, be disqualified in relation to a person --

(a) if such practitioner is interested in the payments (if any) to be made on account of the taking care of the person,

(b) if such practitioner is the husband or wife, father, step-father or father-in-law, mother, step-mother or mother-in-law, son, step-son or son-in-law, daughter, step-daughter or daughter-in-law, brother, step-brother or brother-in-law, sister, step-sister, or sister-in-law, or guardian or trustee of the person, or

(c) if such practitioner is a medical officer of a district mental hospital.

Section 163 (as amended by Section 7 of the MTA 1961) states:-

(1) Where application is made for a recommendation for reception --

(a) in case the registered medical practitioner to whom the application is made has visited and examined the person to whom the application relates within twenty-four hours before receipt of the application, either

(i) if he is satisfied that it is proper to make the recommendation and is of opinion that the person to whom the application relates will, if received, be a chargeable patient, he shall make the recommendation in the prescribed form, or

(ii) in any other case, he shall refuse the application,

(b) in any other case --

(i) the registered medical practitioner to whom the application is made may (or, if he is the authorised medical officer, shall) within twenty-four hours after receipt of the application visit and examine the person to whom the application relates, and

(ii) after such examination, either --

(I) if he is satisfied that it is proper to make the recommendation and is of opinion that the person to whom the application relates will, if received, be a chargeable patient, he shall make the recommendation in the prescribed form, or

(II) in any other case he shall refuse the application.

(2) The following provisions shall have effect in relation to a recommendation for reception:-

(a) the recommendation shall state the date of the examination by the registered medical practitioner of the person to whom the recommendation relates and shall be signed either, in case the examination was made before the date of receipt of the application for the recommendation, on the date of such receipt or, in any other case, on the date of such examination;

(b) the recommendation shall contain a certificate that such person is of unsound mind, is a proper person to be taken charge of and detained under care and treatment, and is unlikely to recover within six months from the date of such examination;

(c) the recommendation shall contain a statement of the facts upon which the registered medical practitioner has formed his opinion that the person is a person of unsound mind, distinguishing facts observed by himself and facts communicated by others.

Section 167 as amended by Section 11 of the Mental Treatment Act 1961 states:-

(1) Where a recommendation for reception is made, the Applicant for the recommendation or any person authorised by him or, in the case of a recommendation for reception made under Section 165 of this Act, any member of the Garda Siochana may, subject to the provisions of this section, take the person to whom the recommendation relates and convey him to the district mental hospital mentioned in the recommendation.

Section 171 as amended by Section 13 of the Mental Treatment Act 1961 states:-

(1) Where a person is removed to a district mental hospital in pursuance of a recommendation for reception, the resident medical superintendent of the hospital or another medical officer of the hospital acting on his behalf shall, on the arrival of the person at the hospital and on presentation of the recommendation, examine the person, and shall thereupon either --

(a) if he is satisfied that the person is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment, forthwith make in the prescribed form an order (in this Act referred to as a chargeable patient reception order) for the reception and detention of the person as a person of unsound mind in the hospital, or

(b) in any other case, refuse to make such order.

(2) Where a chargeable patient reception order is made, the applicant for the recommendation for reception in consequence of which the order was made, shall, for the purposes of this Act, be regarded as the applicant for the order.

(3)(a) Where, the resident medical superintendent of a district mental hospital or another medical officer acting on his behalf having purported to make pursuant to paragraph (a) of subsection (1) of this section a chargeable patient reception order, it is ascertained that the person removed to the hospital was not ordinarily resident at a material time in the appropriate mental hospital district, both the order and the recommendation by reference to which the order was made shall be as valid for all purposes as if such person had been ordinarily resident at that time in that district.

(b) Where, the resident medical superintendent of a district mental hospital or another medical officer of the hospital acting on his behalf having purported to refuse pursuant to paragraph (b) of subsection (1) of this section to make a chargeable patient reception order, it is ascertained that the person removed to the hospital was not ordinarily resident at a material time in the appropriate mental hospital district, the recommendation for reception on which such person was so removed shall be as valid for all purposes as if he had been ordinarily resident at that time in that district.

Section 172

(1) Where a chargeable patient reception order is made, any of the persons mentioned in subsection (2) of this section may receive and take charge of the person to whom the order relates and detain him until his removal or discharge by proper authority or his death and, in case of his escape, retake him within twenty-eight days thereafter and again detain him as aforesaid.

(2) The persons entitled to receive, take charge of, detain, and retake a person under this section shall be --

(a) the mental hospital authority maintaining the district mental hospital mentioned in the relevant chargeable patient reception order,

(b) the resident medical superintendent of such hospital,

(c) the other officers and the servants of such hospital.

Section 208

(1) Where a mental hospital authority, acting on the advice of the resident medical superintendent of their district mental hospital, are of opinion that a person detained in such hospital or in any other institution maintained by them requires treatment (including surgical treatment) not available save pursuant to this section, the authority may direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable and in which he may be received in pursuance of an arrangement under this section.

(2) Subject to the provisions of sub-section (1) of this section, a mental hospital authority and the controlling authority of any hospital or other place where treatment is obtainable may make and carry out an arrangement for the purposes of that sub-section.

(3) Where the medical attendant of a person detained in a mental institution not maintained by a mental hospital authority is of opinion that such person requires treatment (including surgical treatment) not available save pursuant to this section, he may direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable and in which it has been agreed to receive him.

((4) Was repealed by the MTA 1961)

(5) A person removed under this section to a hospital or other place may be kept there so long as is necessary for the purpose of his treatment and shall then be taken back to the place from which he was removed unless it is certified by a registered medical practitioner that his detention is no longer necessary.

Section 218 as amended by Section 28 of the MTA 1961 provides for notice of recovery of the person detained as a chargeable patient to be given to such relative of the person detained as the person in charge of the district mental hospital or other institution thinks proper. Section 219 as amended by Section 29 of the Mental Treatment Act 1961 makes provision for the discharge of a person detained as a chargeable patient where no relative is known.

Section 220 as amended by Section 30 of the MTA 1961 makes provision for the application by a relative or friend of a person detained as a chargeable patient to take care of such person but such person shall not be discharged under that section save with the approval of the resident medical superintendent.

Under Section 222 any person may apply to the Minister for an order for the examination at the expense of the applicant by two registered medical practitioners approved by the Minister of a person detained in a mental institution and the Minister, if he so thinks fit, may make such order.

Part XVIII of the MTA 1945 deals with the powers and duties of the Inspector of Mental Hospitals.

Under Section 235 the Inspector of Mental Hospitals may, whenever and so often as he thinks fit and at any time during the day or night, visit and inspect any mental institution and visit and examine any patient therein.

Under Section 236 the Inspector shall visit and inspect every mental hospital and institution at least once in each year.

Under Section 237, as amended by Section 33 of the MTA 1961, the Inspector shall see every patient whom he has been requested to examine by the patient himself or by any other person or persons (including, in particular, the person in charge of the institution and, in the case of a district mental hospital, the visiting committee), or the propriety of whose detention he has reason to doubt. Among his other duties with respect to any patient the propriety of whose detention he doubts, he must notify the person in charge of the institution that he has doubts as to the propriety of such patient's detention.

Under Section 239(1) where the Inspector of Mental Hospitals becomes of opinion that the propriety of the detention of a patient detained in a district mental hospital or other institution maintained by a mental hospital authority requires further consideration he shall report the matter to the Minister.

(2) After consideration of a report under sub-section (1) of this section, the Minister may, if he so thinks fit, require the Inspector of Mental Hospitals to visit the patient to whom the report relates and to make a report on his mental condition to the Minister.

(3) After consideration of a report under sub-section (2) of this section, the Minister may, if he so thinks fit, by order direct the discharge of the patient to whom the report relates and, if the Minister so directs, the patient shall be discharged accordingly.

THE RELEVANT CASE LAW

In support of his contention that Sections 163, 171 and 172 are repugnant to the Constitution as being part of a draconian and paternalistic code left over from an earlier age, Counsel for the Applicant says that the proper approach for the Court may be derived from the principles set out in several cases. He refers to King v The Attorney General and DPP [1981]IR 233 in which the Plaintiff successfully challenged the constitutionality of Section 4 of the Vagrancy Act, 1824 before McWilliam J. In arguing that there are certain basic norms and procedures which the State must observe, Counsel relies on what Henchy J said on the appeal to the Supreme Court at page 257:-

"In my opinion, the ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, so prone to make a man's lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.

I shall confine myself to saying, without going into unnecessary detail, that the offence, both in its essential ingredients and in the mode of proof of its commission, violates the requirement in Article 38 Section 1, that no person shall be tried on any criminal charge save in due course of law; that it violates the guarantee in Article 40 S 4 sub-s (1) that no citizen shall be deprived of personal liberty save in accordance with law -- which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution; that, in its arbitrariness and its unjustifiable discrimination, it fails to hold (as is required by Article 40 S1) all citizens to be equal before the law; and that it ignores the guarantees in Article 40 S3, 'that the personal rights of citizens shall be respected and, as far as practicable, defended and vindicated, and that the State shall by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen'."

Counsel contends that there is lack of a proper and fair procedure before the making of a reception order and that there is the need for the making of a judicial order before detention or for access to an independent judicial authority within a reasonable time after the making of a reception order. He referred to the judicial process which pertained before the MTA 1945 as exemplified by The State (at the prosecution of Kitty Power) v William Jones and Patrick J Murray, Peace Commissioners for the City and County of Waterford [1944] IR 68. The prosecutrix had applied for a conditional Order of Certiorari to quash a conviction by two Peace Commissioners finding that she was a dangerous lunatic and also to quash a committal warrant on foot of such conviction. The prosecutrix sought to make absolute the conditional order with respect to the committal warrant notwithstanding cause shown, contending that it was bad on its face in that it did not show that there was evidence that the prosecutrix was discovered and apprehended under circumstances denoting a derangement of mind and a purpose of committing an indictable crime, and that there was no evidence before the Peace Commissioners that the prosecutrix had been discovered and apprehended under such circumstances. Counsel pointed to this case as indicating the type of judicial intervention under Section 10 of the Lunacy (Ireland) Act 1867 which ensured that there was a judicial process before a person was taken to and confined in an asylum. It is clear that Section 10 is comparable to Section 165 of the MTA 1945 (as amended by Section 9 of the MTA 1961) which deals with the removal to a Garda Siochana station of a person believed by a member of An Garda Siochana to be of unsound mind and requiring, for the public safety or the safety of the person himself, to be placed forthwith under care and control. The Garda has to apply forthwith in the prescribed form to a registered medical practitioner for a recommendation for the reception and detention of the person as a person of unsound mind in the district mental hospital for the district in which the person ordinarily resides.

In Re: Philip Clarke [1950] IR 235 an Order of Habeas Corpus was sought by the prosecutor who had been detained under Section 165 of the MTA 1945. Section 165 permits a member of the Garda Siochana to detain a person believed to be of unsound mind, where he is of the opinion that it is necessary for the public safety or that of the person concerned, that he be placed under care and control. The Garda officer may take the person into custody and remove him to a Garda station and shall apply forthwith to a doctor for an order for the reception and detention of that person in the district psychiatric hospital. Philip Clarke had been taken into custody and removed to a Garda Station pursuant to the provision of Section 165. He claimed that he had been unlawfully detained since no judicial determination of his case took place between the time of his arrest and the time of his detention in the psychiatric hospital. However, in the High Court it was held by Gavan Duffy P, with whom Davitt and Dixon JJ agreed, at page 237, that:-

"Section 165 of the Act of 1945 empowers a Garda Siochana, as a first step to be followed by two separate medical examinations, to arrest a person believed to be of unsound mind, if he thinks it necessary for the public safety or the safety of the person himself. That seems to be a necessary and proper power for an emergency and the dual medical examination constitutes a reasonable safeguard. The attack here is really an attack on the method of procedure, replacing that under the former law, which, though a district justice or a peace commissioner intervened, was necessarily summary, where a dangerous lunatic or idiot was concerned; and I think the new procedure is an improvement."

On appeal to the Supreme Court the judgment of the Court was read by Mr Justice O'Byrne and at page 247 he said:-

"It was conceded that the Constitution does not prohibit all interference, by legislation, with the right of the individual to personal liberty. The main argument, on behalf of the appellant, against the validity of the section was based upon the absence of any judicial intervention or determination between the arrest of the person alleged to be of unsound mind and his subsequent detention under a reception order.

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 draughtsmen when it was proclaimed in Art 40, l, 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.

The section is carefully drafted so as to ensure that the person, alleged to be of unsound mind, shall be brought before, and examined by, responsible medical officers with the least possible delay. This seems to us to satisfy every reasonable requirement, and we have not been satisfied, and do not consider that the Constitution requires, that there should be a judicial enquiry or determination before such a person can be placed and detained in a mental hospital.

The section cannot, in our opinion, be construed as an attack upon the personal rights of the citizen. On the contrary it seems to us to be designed for the protection of the citizen and for the promotion of the common good.

In our opinion the section in question is not repugnant to either the letter or spirit of the Constitution and, accordingly, we are of opinion that this ground of appeal fails."

While Section 165 has been amended by Section 9 of the MTA 1961, the additions are not relevant to the issue of the lack of a judicial process before detention. Counsel for the Applicant emphasised the safety aspects in Section 165 and stressed that there were issues of danger and urgency which were critical in Clarke's case. It was also pointed out that in contrast to Section 165, Section 162 and 163 contain no requirement of an opinion being held that it is necessary for the public safety, or the safety of the person himself, that he be placed forthwith under care and control.

Counsel also relied on O'Farrell and O'Gorman v The Incorporated Law Society [1960] IR 239 particularly the judgment of Kingsmill Moore J at page 261 in the 'The Solicitors' Act Case'. Counsel argued that since the Supreme Court took the view that the powers given to the Society in the Solicitors' Act case were not powers of a limited nature, since they involved preventing a person from practising in a profession, this thinking should be applied by analogy to Section 171 of the MTA 1945 which has the more drastic effect of incarcerating a person who has not been heard and who has been denied a judicial process. Counsel conceded that, in cases of urgency and danger, the need for judicial intervention at the outset of any detention should be taken as meaning that a judicial ruling should take place as soon as reasonably practicable. He submitted that the effect of the making of the chargeable patient reception order was so far-reaching that it involved a judicial function. He cited a number of cases with regard to the Courts' wary attitude towards curtailment of personal liberty and also towards encroachment upon the distinctive sphere of the judiciary under the separation of powers. He relied upon the judgment of the Supreme Court delivered by O'Byrne J in Buckley v Attorney General ("The Sinn Fein funds case") [1950] IR 67 at page 81.

"Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, and it further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent Articles are designed to carry into effect this distribution of powers.

Articles 15-27, inclusive, deal with the exercise, through the Oireachtas, of the legislative powers of the State; Article 28 provides for the establishment of a government to exercise the executive powers of the State, and Articles 34 to 37, inclusive, provide for the establishment of Courts and the appointment of judges to exercise the judicial powers of the State. At the commencement of the latter set of articles it is provided, by Article 34, that justice shall be administered in Courts established by law by judges appointed in the manner provided by the Constitution.

This seems to us to contemplate and require that justice shall be administered in such manner and not otherwise. Counsel for the Attorney General relied upon the distinction between the latter Article and Art. 64 of the Constitution of Saorstat Eireann; but we are of opinion that when regard is had to Art 6 there is no substantial distinction".

At page 84 O'Byrne J continued:-

"There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Art 6. The effect of that article and of Arts 34-37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the Plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the Plaintiff's claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain."

Counsel contends that once the reasons based on safety and urgency for the detention of a person such as the Applicant have been overtaken by time, then the justification for the restrictions on his liberty becomes a justiciable issue between the Applicant and those responsible for his detention; and furthermore that this issue bearing on the Plaintiff's liberty is a justiciable controversy solely within the jurisdiction of the Courts.

Counsel referred to an analysis of In Re: Solicitors Act, 1954 [1960] IR 239 as providing the bedrock for his argument in this regard. The Appellant Solicitors, who had been struck off the roll of solicitors by Order of the Disciplinary Committee of the Incorporated Law Society, contended that this function was unconstitutional since the Committee was not a Court nor were it's members judges, and that the function of striking off was not a "limited" one. The Supreme Court held with the Appellants, declaring the relevant parts of the Solicitors Act, 1954 invalid. Having recited the relevant portions of Article 6, 34.1 and 37 set out above (and underlined for ease of reference), and having drawn attention to the wording of Article 34, Kingsmill Moore J said at page 263:-

"The corollary must be that justice is not to be administered by persons who are not judges appointed in the manner provided by the Constitution, save in those cases specially excluded by other provisions of the Constitution. What is 'justice', or what is 'the administration of justice', is nowhere defined. That the trial of criminal matters and 'offences' is administration of justice is clear from Article 38 which, by way of exception, authorises, in particular cases, the trial of offences by special Courts and military tribunals. A characteristic feature of criminal matters is the infliction of penalties, a consideration which gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice.

Article 37 authorises the exercise of 'limited functions and powers of a judicial nature' in matters other than criminal matters by a body or bodies of persons not being a judge or a Court appointed or established as such under the Constitution. The corollary is that powers and functions of a judicial nature cannot be exercised by non-judicial persons unless they can be correctly described as 'limited'.

What is the meaning to be given to the word 'limited'? It is not a question of 'limited jurisdiction' whether the limitation be in regard to persons or subject matter. Limited jurisdictions are specially dealt with in Article 34.3.4. It is the 'powers and functions' which must be 'limited', not the ambit of their exercise. Nor is the test of limitation to be sought in the number of powers and functions which are exercised. The Constitution does not say 'powers and functions limited in number'. Again it must be emphasised that it is the powers and functions which are in their own nature to be limited. A tribunal having but a few powers and functions but those of far-reaching effect and importance could not properly be regarded as exercising 'limited' powers and functions. The judicial power of the State is by Article 34 of the Constitution lodged in the Courts, and the provisions of Article 37 do not admit of that power being trenched upon, or of its being withdrawn piecemeal from the Courts. The test as to whether a power is or is not 'limited' in the opinion of the Court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised, they cannot properly be described as 'limited'.

The short point involved in this appeal is whether the Disciplinary Committee, set up by the Act, has been given powers and functions the exercise of which involves the 'administration of justice' and which cannot properly be regarded as falling within the saving provisions of Article 37.

There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Many bodies, such as clubs, trade unions, trade and professional associations, chartered or otherwise, admit members only on condition that they agree to abide by and be bound by a set of rules which confer on the body or a committee of the body the power to investigate the conduct of its members, and, if such conduct involves a breach of the rules or the code of behaviour required, to expel the offender. Such a jurisdiction does not gain its efficacy from any action of the State or the Legislature, and is not a diminution or devolution of the judicial power of the State -- it rests on contract only.

Here we are dealing with a tribunal which depends for its existence and its powers on a legislative act of the State. If the effect of such legislation is to confer the power to administer justice on persons who are not regularly appointed as judges it is by Article 34 unconstitutional, unless it can be brought within some of the saving provisions of the Constitution. Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the tribunal or any particular power or function is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts, which on the true intendment of the Constitution are reserved to judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37."

He continued at page 265 to say:-

"The decisions of our Courts have been concerned chiefly with the distinction between administrative and judicial power, a distinction which is not cardinal in the present case. The leading authority is Lynham v Butler (No 2) [1933] IR 74 decided under the Constitution of 1922. Article 64 of that Constitution provided that 'the judicial power of the Irish Free State should be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided,' wording very similar to that of our present Constitution. The Lay Commissioners of the Irish Land Commission had decided that certain lands were properly included in a provisional list of tenants' lands to be vested in the Land Commission under the provisions of the Land Act, 1923. It was objected that in so doing they were exercising 'the judicial power of the State' which by Article 64 could only be exercised by properly appointed judges. The decision of the Court was to the effect that, in making the ruling objected to, the Commissioners were exercising merely administrative and ministerial powers, but passages in the judgments helped to mark out the limits of judicial as opposed to administrative or executive powers.

The fact that the powers entrusted to a tribunal must be exercised judicially does not in itself make their exercise an exercise of the judicial power. 'The nature of some of their ministerial duties required that they be performed judicially, in the sense that they must be performed with fairness and impartiality, and in such a way as not to offend against the canons of natural justice, which requirement however will not convert a ministerial act into a judicial act in the sense of an act which must be performed by a judge in a Court of Justice,' per Kennedy CJ at p 104."

Having mentioned a number of cases in which the distinguishing characteristics of judicial power were discussed, Kingsmill Moore J at page 271 continued:-

"From none of the pronouncements as to the nature of judicial power which have been quoted can a definition at once exhaustive and precise be extracted, and probably no such definition can be framed. The varieties and combinations of powers with which the legislature may equip a tribunal are infinite, and in each case the particular powers must be considered in their totality and separately to see if a tribunal so endowed is invested with powers of such nature and extent that their exercise is in effect administering that justice which appertains to the judicial organ, and which the Constitution indicates is properly entrusted only to judges."

He went on to analyse the features of the Disciplinary Committee of the Society and said that the decisive test in the opinion of the Court lay in the orders which the Committee was empowered to make. At page 275 he concluded:-

"It seems to the Court that the power to strike a solicitor off the roll is, when exercised, an administration of justice, both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial power of the State and because to entrust such a power to persons other than judges is to interfere with the necessities of the proper administration of justice."

Counsel for the Applicant asks how can powers which enable a person to be detained and deprived of his liberty, and not merely to be struck off the roll of the members of a profession, not be described as "an administration of justice"? He argues that the effect of an order under Sections 171 and 172 is so far-reaching that there must be a judicial intervention as soon as is reasonably practicable. He stressed that an order made under Section 171 might affect not only the Plaintiff's right to liberty but also other rights such as the right to associate and the right to freedom of movement. The importance of such rights has been confirmed repeatedly by the Courts. For example, in State (Quinn) v Ryan [1965] IR 70, police officers had arranged to remove a prisoner out of the jurisdiction of the Irish Courts on an English warrant with such speed that he had no opportunity to apply to the Courts to question the validity of such warrant or to apply to the Court for an Order of Habeas Corpus. Chief Justice O Dalaigh said at p 122:-

"It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts' powers in this regard are as ample as the de fence of the Constitution requires".

In The People (Attornev General) v Roger O'Callaghan [1966] IR 501 in an application for bail, Walsh J at page 516 said:-

"In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that."

In The State (Healy) v Donoghue [1976] IR 325, a case which concerned entitlement to legal aid, at page 348 O'Higgins CJ said:-

"In the first place the concept of justice, which is specifically referred to in the Preamble in relation to the freedom and dignity of the individual, appears again in the provisions of Article 34 which deal with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness, and fair procedures, but also regard to the dignity of the individual. No Court under the Constitution has jurisdiction to act contrary to justice."

Mr Justice Gannon in his judgment in this matter in the High Court had said:-

"Before dealing with the submissions on the grounds on which the conditional orders were made, I think I should say at the outset that it appears to me that the determination of the question of whether or not a Court of local and limited jurisdiction is acting within its jurisdiction is not confined to an examination of the statutory limits of jurisdiction imposed on the Court. It appears to me that this question involves also an examination of whether or not the Court is performing the basic function for which it is established -- the administration of justice. Even if all the formalities of the statutory limitation of the Court be complied with and if the Court procedures are formally satisfied, it is my opinion that the Court in such instance is not acting within its jurisdiction, if at the same time, the person accused is deprived of any of his basic rights of justice at a criminal trial".

At page 350 in Healy's Case Chief Justice O'Higgins said:-

"The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial."

In the same case at page 353 Henchy J said:-

"When the Constitution states that 'No person should be tried on any criminal charge save in due course of law'

(Article 38 S 1), that 'the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen'

(Article 40 S 3 sub-s 1), that 'the State shall in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen' (Article 40 S 3 sub-s 2), that 'no citizen shall be deprived of his personal liberty save in accordance with law' -- (Article 40 S 4 sub-s 1), it necessarily implies, at the very least, a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner, or in circumstances, calculated to shut him out from a reasonable opportunity of establishing his innocence; or, where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances".

Counsel contends that under Section 171 the Plaintiff has been deprived of his liberty without even the semblance of a trial or a judicial process and that the effect of a chargeable patient reception order is that the applicant is detained until his removal or discharge by proper authority or his death. He makes the distinction that the criteria required under Sections 162, 163 and 171 are different from the stipulations in Section 165 which is predicated on the safety of the public or the detainee himself. Furthermore, he criticises the procedure as being arbitrary and as giving the detainee no opportunity to be represented or to make representations.

Counsel referred to several American cases supporting the contention that there is a need for a judicial process before an American citizen can be confined involuntarily on grounds of mental illness. In Addington v Texas 441 US 323 the American Supreme Court was dealing with a case in which the Appellant's mother filed a petition for his indefinite commitment to a State mental hospital in accordance with Texas law governing involuntary commitments. In the Opinion of the US Supreme Court, delivered by Chief Justice Burger, it was held that

(a) The individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared to the State's interest in providing care to its citizens who are unable, because of emotional disorders, to care for themselves and in protecting the community from the dangerous tendencies of some who are mentally ill, that due process requires the State to justify confinement by proof more substantial than a mere preponderance of the evidence.

(b) Due process does not require States to use the "beyond a reasonable doubt" standard of proof applicable in criminal prosecutions and delinquency proceedings. The reasonable doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the State cannot meet and thereby erect an unreasonable barrier to needed medical treatment. The State should not be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the State and the patient that are served by civil commitments.

(c) To meet due process demands in commitment proceedings, the standard of proof has to inform the fact-finder that the proof must be greater than the preponderance of the evidence standard applicable to other categories of civil cases. However, use of the term "unequivocal" in conjunction with the terms "clear and convincing" in jury instructions (as included in the instructions given by the Texas State Court in this case) is not constitutionally required, although States are free to use that standard.

The Chief Justice confirmed that the Supreme Court had repeatedly recognised that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Moreover, it was indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. The Chief Justice said:-

"Whether we label this phenomena (sic) 'stigma' or choose to call it something else is less important than that we recognise that it can occur and that it can have a very significant impact on the individual.

The State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police powers to protect a community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear as to what extent, if any, the State's interests are furthered by using a preponderance standard in such commitment proceedings.

The expanding concern of society with problems of mental disorders is reflected in the fact that in recent years many States have enacted statutes designed to protect the rights of the mentally ill. However, only one state by statute permits involuntary commitment by a mere preponderance of the evidence, Miss Code Ann 41-21-75 (1978 supp), and Texas is the only State where a Court has concluded that the preponderance-of-the-evidence standard satisfies due process. We attribute this not to any lack of concern in those States, but rather to a belief that the varying standards tend to produce comparable results. As we noted earlier, however, standards of proof are important for their symbolic meaning as well as for their practical effect.

At one time or another every person exhibits some abnormal behaviour which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously such behaviour is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a fact-finder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behaviour. Increasing the burden of proof is one way to impress the fact-finder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.

The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the State. We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that the due process requires the State to justify confinement by proof more substantial than a mere preponderance of the evidence."

He later said at p 356:-

"We have concluded that the reasonable doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the State cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly we conclude that use of the term 'unequivocal' is not constitutionally required although the States are free to use that standard. To meet due process demands, the standard has to inform the fact-finder that the proof must be greater than the preponderance of the evidence standard applicable to other categories of civil cases."

Thus in the United States there is not only a need for a judicial process but also the burden of proof has to be discharged on the basis of being equal to or greater than the "clear and convincing" standard and not just on the basis of a mere balance of probabilities.

In a 1975 case, O'Connor v Donaldson, 422 US 396, the certiorari was brought to the United States Court of Appeals for the fifth circuit by way of appeal in a case where the Respondent, who was confined almost fifteen years "for care, maintenance, and treatment" as a mental patient in a Florida State hospital brought an action for damages against the Petitioner, the Hospital Superintendent, and other staff members alleging that they had intentionally and maliciously deprived him of his constitutional right to liberty. The evidence showed that Respondent, whose frequent requests for release had been rejected by the Petitioner, notwithstanding undertakings by responsible persons to care for him if necessary, was dangerous neither to himself nor others, and, if mentally ill, had not received treatment. The Petitioner's principal defence was that he had acted in good faith, since State law, which he believed valid, had authorised indefinite custodial confinement of the "sick", even if they were not treated and their release would not be harmful, and that the Petitioner was therefore immune from any liability for monetary damages. The jury found for the Respondent and awarded compensatory and punitive damages against the Petitioner and a co-Defendant. The Court of Appeals, on broad Fourteenth Amendment grounds, affirmed the District Court's ensuing judgment entered on the verdict. The Court of Appeals held that a State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends, and since the jury found, upon ample evidence, that the Petitioner did so confine the Respondent, it properly concluded that the Petitioner had violated the Respondent's right to liberty. Mr Justice Stewart in delivering the opinion of the Court said:

"A finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the 'mentally ill' can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.

May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends.

May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty.

In short, a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. Since the jury found, upon ample evidence, that O'Connor, as an agent of the State, knowingly did so confine Donaldson, it properly concluded that O'Connor violated Donaldson's constitutional right to freedom."

Concurring with that judgment, Chief Justice Burger said:-

"There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Commitment must be justified on the basis of a legitimate State interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease when those reasons no longer exist."

He also said:-

"However the existence of some due process limitations on the parens patriae power does not justify the further conclusion that it may be exercised to confine a mentally ill person only if the purpose of the confinement is treatment. Despite many recent advances in medical knowledge, it remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of 'cure' are generally low."

In Jackson v Indiana, 406 US 435 the Supreme Court was dealing with an appeal from an order of the Supreme Court of Indiana on a certiorari where the Indiana procedure for pre-trial commitment of incompetent criminal defendants provides that a trial Judge, with reasonable ground to believe the defendant to be incompetent to stand trial, must appoint two examining physicians and schedule a competency hearing at which the defendant may introduce evidence.

Mr Justice Blackmun delivered the opinion of the Court in the course of which he said:-

"We hold, consequently, that a person charged by a State with a criminal offence who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.

If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the Defendant. Furthermore, even if it is determined that the Defendant probably soon will be able to stand trial, his continued commitment must be justified by progress towards that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial."

It is clear that there has to be due judicial process in the USA before somebody is confined against his will on grounds of mental illness and that there are considerable safeguards against unlawful detention. The problem with the requirement of a judicial intervention at an initial stage of the process of detention of a person suffering from a mental disorder is that the stress will be put on dangerousness. If the doctors are drawn into such a process and have to testify about the condition of their patient, especially if that evidence has to be given in the presence of the patient, then this has radical implications for the doctor-patient relationship and the treating doctor engaged in the therapy of the patient is put in the position of perhaps having to testify that the patient is a danger to himself or to others. This has serious implications for the doctor-patient relationship particularly in the context of the MTA, 1945, which was characterised by a move from confinement of the mentally disordered to a regime more based on the therapy and treatment of the mentally disordered.

By the enactment of the Mental Treatment Act 1945 and the amendments thereto, the Oireachtas has opted for a paternalistic regime which stresses the therapeutic relationship between doctor and patient. By making no provision for a judicial intervention and by excluding a due process procedure involving the judiciary before a person who is deemed to be mentally disordered can be detained, the Oireachtas by legislation has allowed substantial physical restraints on an individual without establishing even a quasi-judicial procedure to determine the factual basis for, and the legality of, such detention.

This should be contrasted with the evolution of the law in the USA. While the US Supreme Court had not yet clearly defined the procedures required, it is clear that an adult cannot be committed for treatment of mental illness unless there has been a fair procedure to determine that the person is dangerous to himself or others. On the "dangerousness requirement" in Addington v Texas 441 US 323 Supreme Court determined that an adult cannot be involuntarily committed to a psychiatric institution on a burden of proof that requires the State merely to show by a preponderance of the evidence that the person is dangerous to himself or another. Although the Court did not require a "beyond a reasonable doubt" standard, it held that trial Courts must at least employ a "clear and convincing" evidence standard. Chief Justice Burger in giving the opinion of an unanimous Court, held that the societal and constitutional value placed on freedom from detention required adoption of a standard beyond a balance of probabilities standard. Nevertheless as the nature of commitment proceedings were non-punitive and concerned with issues such as psychiatric opinions, which are of their nature prone to uncertainty, the Court did not require States to adopt the standards required in a criminal suit of "beyond reasonable doubt" or an unequivocal proof standard. In that case the United States Supreme Court was considering the position of the mentally disordered about to be assessed for placement in psychiatric institutions or actually detained there as being particularly at risk. Having regard to their vulnerability, as a result of their perceived disorder, and their entanglement in the world of psychiatry, it is instructive to bear in mind that the US Supreme Court approaches the matter from the perspective of having as its touchstone a written Constitution which protects the liberty of the individual.

THE RESPONSE OF IRELAND AND THE ATTORNEY GENERAL to the challenges based on:-

(a) that the making of a Reception Order is an administration of justice and requires a judicial intervention;

(b) that the indefinite detention and lack of an automatic periodic review procedure under Sections 163, 171 and 172 are repugnant to the Constitution.

Counsel for the State referred to Dr Robins' book "Fools and Mad" and in particular the chapter entitled "The walls come tumbling down" for an understanding of how, with the passage of time, the need to change the outdated Mental Hospital Admission Laws of 1867 became obvious. The radical reforms in the MTA 1945 departed from the longstanding process whereby most patients were committed on the order of two Peace Commissioners (previously Justices of the Peace). Under the new arrangements, based entirely on medical certification, a person could be admitted to a mental hospital either as a voluntary or as a detained patient. Detained patients fell into two categories, temporary patients and persons of unsound mind. Persons of unsound mind could be detained indefinitely under Part XIV of the MTA 1945. Counsel stressed that this change to solely medical certification was brought about by the shift of emphasis on to the need to give medical treatment to a person suffering from mental disorder. He maintained that the safeguards provided in the MTA 1945 and by invocation of the habeas corpus jurisdiction were adequate. He went through the safeguards which I have set out below. These may be summarized as follows:- the imposition on the hospital authorities of the duty to discharge a patient who has recovered; the appointment of visiting committees to the hospitals; the right of a relative or friend to appeal to the Minister for the discharge of a patient; the right of any person to apply to the Minister to have the patient examined by independent medical practitioners; and the role of the Inspector of Mental Hospitals which involved his being given special powers and duties to ensure that there was no abuse of the detention arrangements. Counsel also pointed to the provisions ensuring various roles for the President of the High Court and the patient's right of communication to both the President and to the Minister.

Counsel carefully enumerated the safeguards and protections contained in the MTA 1945 as amended. I have already adverted to Flood J's remark in Croke No 1 that the protection afforded to patients against arbitrary and unwarranted detention, while not ideal, are an adequate protection and give to the Applicant a right to question his continued detention and, if necessary, to bring the matter to the attention of the High Court. Counsel relied on this view.

The safeguards are as follows:-

(A) The requirement for recommendation by a registered medical practitioner, not connected with the patient or the receiving institution, following upon medical examination; and also the matters which require to be certified by such practitioner. (Section 162 of the MTA 1945 as amended by Section 6 of the MTA 1961; Section 163 of the MTA 1945 as amended by Section 7 of the MTA 1961 and Part 3 of Form 4 prescribed by the Mental Treatment Regulations 1961 (SI Number 261 of 1961)).

(B) The examination required by the resident medical superintendent or other medical officer acting on his behalf at the receiving hospital and the matters required to be certified by him. (Section 171 of the MTA 1945 as amended by Section 13 of the MTA 1961).

(C) The Applicant is entitled to all the benefits of the provisions of the MTA 1945 as amended while he is being treated in the Central Mental Hospital by virtue of the provisions of Section 256 of the MTA 1945 and because the Central Mental Hospital is a mental institution as defined in the MTA 1945 pursuant to the combined effect of Section 44 of the Health Act 1970 and the Central Mental Hospital Order 1971 (SI No 236 of 1971).

(D) There is a specific statutory obligation that the Applicant should only be kept in the Central Mental Hospital so long as it is necessary for the purpose of his treatment and subsequently he must be taken back to St Itas or else released (See Section 208(5) of the MTA 1945).

(E) There is a statutory duty to discharge a patient upon recovery (see Section 218 of the MTA 1945 as amended by Section 28 of the MTA 1961. Section 219 of the MTA 1945 as amended by Section 29 of the MTA 1961).

(F) The right of any person (including a patient, to apply to the Minister for an Order for the examination of the patient by two registered medical practitioners, the right to apply to the Minister for discharge of the patient and the power of the Minister to order such a discharge if he thinks fit (Section 222 of the MTA 1945).

(G) The right of a person detained under a reception order to apply to be received as a voluntary patient (Section 216 of the MTA 1945 as amended).

(H) The right of a relative or friend of a person detained as a chargeable patient to apply for the discharge of such person (Section 220 of the MTA 1945 as amended by Section 30 of the MTA 1961).

(J) Provision that if the resident medical superintendent refuses to agree to the discharge of a patient he must certify in writing why that person is dangerous or otherwise unfit to be discharged, the provision for objection to be made to such certificate by or on behalf of the patient, the provision entitling the Minister to require the Inspector of Mental Hospitals to examine the patient, and the power of the Minister to order the discharge of the patient if he so thinks fit (Section 221 of the MTA 1945.)

The Inspector of Mental Hospitals is given an important role:-

(A) The Inspector has a general power to visit and inspect any mental institution and visit and examine any patient therein (Section 235 of the MTA 1945).

(B) The Inspector has an obligation to visit and inspect every institution maintained by a mental hospital authority at least once in every year (Section 236 of the MTA 1945).

(C) The Inspector has a specific obligation to see every patient whom he has been requested to examine by the patient or by some other person or the propriety of whose detention he has reason to doubt (Section 237 (A) and (B) of the MTA 1945).

(D) The Inspector has a specific obligation to report to the Minister if he becomes of opinion that the propriety of the detention of a patient requires further consideration and the Minister has power to require the Inspector to visit the patient and to make a report on his mental condition to the Minister and the Minister has power to direct the discharge of such patient (Section 239 of the 1945 MTA).

(E) The power and obligation of the Inspector to inspect the CMH (Section 248 of the MTA 1945).

The President of the High Court also has an important role:-

(A) The President has power to order the Inspector to visit and examine any person detained at any place as a person of unsound mind and to report to the President on the condition of such person (Section 241 of the MTA 1945).

(B) The President has power to appoint a barrister to assist in the conduct of any visit or investigation under the MTA 1945 (see Section 276 of the MTA 1945).

(C) The President of the High Court also has the inherent jurisdiction, as successor to the Lord Chancellor of Ireland in lunacy matters including the jurisdiction to have an enquiry as to whether a person is or is not of unsound mind, and to make consequential orders. This power was asserted and explained recently.

In the matter of an application by the Midland Health Board to initiate proceedings to make a person a Ward of Court [1988] ILRM 251, Chief Justice Finlay in an unanimous judgment of the Supreme Court held that Section 9 of the Courts (Supplemental Provisions) Act 1961 vested in the High Court the jurisdiction to deal with lunacy matters which was formerly exercised by the Lord Chancellor of Ireland. This jurisdiction was vested in him by a Letter in Lunacy addressed to him by the Sovereign and this letter placed the care and custody of idiots and lunatics before the care of their estates. The provisions of Article 40.3.2 of the Constitution supported such a construction of the jurisdiction in lunacy matters vested by Section 9 of the Courts (Supplemental Provisions) Act 1961. At page 254, Chief Justice Finlay said:-

"The jurisdiction of the High Court in lunacy matters is provided for in Section 9 of the Courts (Supplemental Provisions) Act 1961 s 9.1 and 2 read as follows:-

(1) There shall be vested in the High Court the jurisdiction in lunacy and minor matters which --

(a) was formally exercised by the Lord Chancellor of Ireland,

(b) was at the passing of the Act of 1924, exercised by the Lord Chief Justice of Ireland, and

(c) was by virtue of subsection 1 of Section 19 of the Act of 1924 and subsection l of Section 9 of the Act of 1936 vested immediately before the operative date, in the existing High Court.

(2) The jurisdiction vested in the High Court by subsection 1 of his section shall be exercisable by the President of the High Court or where the President of the High Court so directs, by an ordinary Judge of the High Court for the time being assigned in that behalf by the President of the High Court.

I am satisfied that this section must be construed as vesting a jurisdiction in the High Court as both subs (1) and (2) of it describe it as doing, the extent of which jurisdiction is described and identified by subclauses (a) and (b) by reference to jurisdictions formerly exercised and by subclause (c) by reference to jurisdictions previously vested in the former High Court.

It does not as does Section 5.19 of the 1924 Act transfer any jurisdiction but rather directly vests it".

At page 256 he continued:-

"It would appear that the jurisdiction in lunacy matters exercised by the Lord Chancellors of Ireland was vested in them by a Letter in Lunacy addressed to each successive Chancellor by each successive Sovereign. The terms of and the interpretation to be placed on this "Letter in Lunacy" is dealt with by Lord Ashbourne C in the case of In Re: Birch (1892) 29 LRIR 274 in the following terms:

The terms of the Queen's letter in lunacy expressly state the nature of the jurisdiction it confers. It commences:

"Whereas it belongeth unto us in right of our royal prerogative to have the custody of idiots and lunatics and their estates in that part of the United Kingdom called Ireland . . . we therefore . . . have thought fit to entrust you with the care and commitment of the custody of the idiots and lunatics and their estates."

These words amount to an express delegation by the Crown under the sign-manual of its prerogative jurisdiction in lunacy to the Lord Chancellor. The single purpose of the Crown is to benefit this afflicted class by confining them to the care of its highest Judge and one of its greatest officials. There is no restriction by which the jurisdiction of the Lord Chancellor is confined to any particular section of this afflicted class. The parental care of the sovereign extends over all idiots and lunatics, whether so found by legal process or not. That high prerogative duty is delegated to the Lord Chancellor, and there is no statute which in the slightest degree lessens his duty or frees him from the responsibility of exercising that parental care and directing such enquiries and examinations as justice to the idiots and lunatics may require. The Queen puts the care and commitment of the custody of idiots and lunatics before the care of their estates, thus showing with unmistakable clearness that the first and highest care of the Lord Chancellor should be given to the personal treatment of this afflicted class. (At p 275).

In the case of In Re: Godfrey (1892) 29 LRIR 278 in which judgment was delivered shortly after the case of In Re: Birch (1892) 29 LRIR 274 the Lord Chancellor made an order freeing a person alleged to be of unsound mind from detention in an institution upon finding that she was not any longer of unsound mind. The person had not at any time been a Ward of Court and there is no reference in the report to the ownership by her of any property. In fact it would be possible to infer from some of the arrangements made by the Lord Chancellor with regard to the person concerned that she had no or negligible property. He made this order on the basis of his view of his general jurisdiction which he stated at page 279 of the report in the following terms:-

"The power given by the Queen's Sign-Manual creates a high and responsible duty in the Lord Chancellor towards these afflicted persons, calling on him to act on their behalf whenever it may come to his notice that their liberty or happiness require his intervention, and this beneficent jurisdiction is not confined to those so found by process of law, or narrowed to any special class. The power and duty so given and created afford in this case an illustration of the most salutary and protective exercise of the prerogative of the Sovereign."

"I am driven by these two decisions and by the statement of a former Lord Chancellor of Ireland as to what his understanding of his jurisdiction was and indeed the exercise by him of it to the conclusion that it extended beyond the taking into wardship of persons who had property and the management and protection of their property as well as the protection of their person. Such a construction of the jurisdiction in lunacy matters vested by the Act of 1961 in the High Court seems to me to obtain significant support from a consideration of the provisions of Article 40.3.2 of the Constitution where the obligation imposed on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the life and person of every citizen is put in equal place with the obligation to protect and vindicate the property rights of every citizen".

This is strong affirmation of the powers of the President of the High Court to protect persons suffering from unsoundness of mind. I have no doubt that when a complaint is brought to the attention of the President of the High Court that the matter is investigated promptly either by requesting the Inspector of Mental Hospitals to investigate the complaint or otherwise. This useful protection, however, depends for its activation on the matter being brought to the notice of the President. Many patients suffering from mental disorder will be either illiterate, or otherwise incapable of communicating their complaint, and may have no kith or kin willing or able to make representations on their behalf. It is to be noted that at page 258 Chief Justice Finlay added:-

"Having regard to the fact that in many instances mental retardation or mental handicap does not equate with unsoundness of mind, I would also consider it desirable that legislation should be enacted to provide for the protection of persons suffering from mental handicap where the law does not already do so. Valuable recommendations in this context were made in the report issued by the Commission of Enquiry on Mental Handicap in 1965."

Patients also have the right to have letters forwarded unopened to the Minister for Health, the President of the High Court, the Registrar of Wards of Court, the mental hospital authority, the visiting committee of a district mental hospital or the Inspector of Mental Hospitals and there is a requirement that notices setting forth such right should be kept posted in a mental institution (see Section 266 of the Mental Treatment Act 1945 as amended by Section 36 of the MTA 1961 and also Section 267 of the MTA 1945). The Minister may also direct the admission of any person to visit a patient in a mental institution (see Section 269 of the MTA 1945).

Finally, the patient or some person acting on his or her behalf, may apply to the High Court for an Order of Habeas Corpus or for an Order pursuant to Article 40.4.2 of the Constitution, as exemplified by this application. Indeed, the Applicant himself formerly availed of this procedure before Flood J who came to the conclusion that the protection afforded to patients against arbitrary and unwarranted detention by Sections 189, 217, 218, 222, 236, 237, 250 and 266 of the Mental Treatment Act 1945 (as amended), while not ideal, are an adequate protection against any form of arbitrary and unlawful detention and give the Applicant the right to question his continued detention and, if necessary, to bring the matter to the attention of the High Court. In the Croke No 1 case Flood J was dealing with the temporary chargeable patient reception order under Chapter III of Part XIV of the MTA 1945 as amended. This should have involved detention for six months or less subject to the powers to extend the period of detention of a temporary patient under Section 189 of the MTA 1945 as amended by Section 18 of the MTA 1961. However, Counsel contends that all the safeguards set out above, and the general measures envisaged by Flood J exist both for temporary patients and for the Applicant in his present position of being detained for an infinite duration.

Counsel for the fourth and fifth named Respondents argued that the MTA 1945 as amended ensured concentration on the medical treatment of a person suffering from a mental disorder and so moved emphasis away from the need for a judicial decision. Although the Applicant had been transferred to the CMH under Section 208 of the MTA 1945 as amended he retained his status as if he were still in St Ita's and continued to be entitled to all the safeguards provided in the MTA 1945 as amended. Furthermore, since neither the European Convention nor the United Nations principles mentioned above have been incorporated into the domestic law of the State by the Oireachtas, the constitutional prohibition in Article 29 still holds good and prevents the Court from using the principles set out in such international agreements as a touchstone for the constitutional validity of Irish legislation.

There is a presumption of constitutionality in favour of the MTA 1945 as amended as being an Act of the Oireachtas passed since the coming into force of the Constitution. Moreover, the Courts have also articulated the principle of self-restraint with regard to judicial review of legislation, which in general limits the exercise of judicial review to cases where it is necessary for the decision of the issue. The Court should not engage in the question of the possible invalidity of an Act of the Oireachtas unless it is necessary so to do. In The State (P Woods) v Attorney General [1969] IR 385 Henchy J pointed out at page 399 that a Court could invalidate a statute, and thus leave a gap in the law, but could not create a new Act to plug the gap:-

"It unmakes what was put forth as a law by the legislature, but, unlike the legislature, it cannot enact a law in its place. It is clear that if this power, which may seem abrogative and quasi-legislative, were used indiscriminately it would tend to upset the structure of government . . . Because of the constitutional proprieties involved in the judicial review of legislation and the inherent limitations of the judicial process, the rule has been evolved that a Court should not enter upon a question of constitutionality unless it is necessary for the determination of the case before it."

Counsel for the fourth and fifth named Respondents also argued that the Court should take cognizance of the presumption that persons who have been given powers under the MTA 1945 as amended should be assumed to exercise them in a fair and constitutional manner; for instance, the Minister for Health should be relied upon to decide and to act fairly and properly in respect of any representation made to the Minister, such as for example a request for a report from the Inspector of Mental Hospitais. It should also be presumed that the Minister both in considering and acting upon the contents of reports will act fairly and properly.

Counsel relied on In Re: Philip Clarke [1950] IR 235. He suggested that in Clarke's case the Supreme Court was considering the validity of a reception order made under Part XIV of the MTA 1945. He contended that Sections 162 to 172 contained a code involving a number of ways in which a person might be made the subject of a reception order and that Section 165 was only one limited part of this process. He argued that in Philip Clarke's case the recommendation by the doctor would have been under Section 163 and the reception order would have been made under Section 171, being the relevant sections also in the Applicant's case.

Counsel argued that the challenge in both Philip Clarke's case and in the Applicant's case was not only to the initial bringing in of the patient but also to the subsequent detention under the reception order; and that the attack in both cases was on the composite process contained in Part XIV and that the Supreme Court has already rejected this identical challenge. At page 248 O'Byrne J said of Section 165:-

"The section is carefully drafted so as to ensure that the person, alleged to be of unsound mind, shall be brought before, and examined by, responsible medical officers with the least possible delay. This seems to us to satisfy every reasonable requirement, and we have not been satisfied, and do not consider that the Constitution requires, that there should be a judicial enquiry or determination before such a person can be placed and detained in a mental hospital.

The section cannot, in our opinion be construed as an attack upon the personal rights of the citizen. On the contrary it seems to us to be designed for the protection of the citizen and for the promotion of the common good.

In our opinion the section in question is not repugnant to either the letter or spirit of the Constitution and, accordingly, we are of opinion that this ground of appeal fails".

In my view, it is clear from this passage that O'Byrne J had Section 165 in particular under scrutiny. This Court is bound by the decision of the Supreme Court. The present challenge is on similar lines to the attack in Philip Clarke's case. However, my reading of Clarke's case is that the Supreme Court had Section 165 in their sights and while the other sections in Part XIV would have been in their peripheral vision, their focus was on the constitutionality of Section 165. Both the decision of Gavan Duffy P in the High Court (with whom Davitt J and Dixon J agreed) and the decision of the Supreme Court read by O'Byrne J concentrated particularly on Section 165 of the MTA 1945. Accordingly while this Court is bound by their finding with regard to Section 165, it seems that there was little argument about, or deep consideration given to, the provisions of Section 172. In particular the implication that when a chargeable patient reception order is made the Applicant may be received and taken charge of and detained until his removal or discharge by proper authority or his death, without there being any independent or automatic review procedure was not directly under consideration in Clarke's case.

Counsel for the fourth and fifth named Respondents also referred to Gallaaher v DPP [1991] IR 31. The Applicant had been tried before the Central Criminal Court on a charge of murder and was found to be guilty but insane. Issues subsequently arose as to whether the function of making an enquiry into the mental state of the former accused vested in the Lord Lieutenant (by Section 2 of the Trial of Lunatics Act, 1883, by virtue of the Adaptation of Enactments Act, 1922), now vested in the Court or in the Government; and also as to whether the functions in question were, for the purposes of the constitutional doctrine of the separation of powers, properly classed as judicial powers incapable of being exercised by the Executive. In delivering the unanimous judgment of the Supreme Court, McCarthy J said at page 38:-

"When the special verdict is returned, the Court has no function of enquiry into the mental state of the former accused; that role is given to the executive. Pursuant to Subsection 2 the only Order that could lawfully be made was an Order that the Accused be kept in custody as a criminal lunatic in such place and in such manner as the Court should direct; immediately after the making of the Order, or "thereupon" as stated in the Subsection, the role of the executive arose -- to provide an appropriate place for the safe custody of the Accused in such place and in such manner as the executive thought appropriate, until such time as the executive was satisfied that having regard to the mental health of the Accused it was, for both public and private considerations, safe to release him. In that sense the role of the executive, on the making of the judicial order, became like unto the role of the executive in Section 165 of the Mental Treatment Act, 1945. When the constitutional validity of that Section was challenged in In Re: Philip Clarke [1950] IR 235, as permitting detention without the intervention of the judicial power, the challenge was rejected. No criticism has been levied against the decision of the Supreme Court of Justice in Clarke's case".

From this passing reference by McCarthy J, it would seem that the merits of the decision in Clarke were not debated in Gallagher's case. Again it would appear that the focus was on Section 165 of the MTA 1945 and not on the validity of Section 172 which allows for indefinite detention without any independent or automatic review.

In RT v Director of the Central Mental Hospital Costello P on the 16 day of February 1995 delivered judgment in the matter of an enquiry pursuant to Article 40.4 of the Constitution. The Applicant RT had been a patient in St Brendan's Hospital, Dublin but was transferred to the CMH Dundrum by order made pursuant to the provisions of Section 207(2)(C) of the MTA 1945 which Section was impugned. For sixteen years the Applicant RT had been detained in the CMH. At page 7 Costello P said:-

"The present proceedings have been brought pursuant to Article 40.4 of the Constitution. This provides that upon a complaint being made to a Judge of the High Court alleging that a person is being unlawfully detained the Judge "shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the Court . . . and to certify in writing the grounds of his detention. The High Court shall order the release of the person from detention "unless satisfied that he is being detained in accordance with the law".

Article 40.4.3. provides that where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under the section and the Court "is satisfied that such person is being detained in accordance with the law but that such law is invalid having regard to the provisions of this Constitution" then the Court shall refer the question of the validity of the law to the Supreme Court by way of case stated. The Court is also empowered to allow the Applicant to be at liberty on such bail and subject to such conditions as it shall fix until the Supreme Court has determined the question so referred.

Article 40.4.3 is relevant in this case because of the Applicant's alternative contention that if he is presently detained in accordance with the law then that law is invalid having regard to the provisions of the Constitution."

The Applicant RT had been admitted into St Brendan's Hospital, Dublin as a temporary chargeable patient by order made on 16th August, 1977, under Section 184 of the MTA 1945. Whilst in St Brendan's Hospital the Applicant was charged with a criminal offence of causing actual bodily harm to a patient in the hospital. At a hearing of the District Court on 4 July, 1978, a Judge of the District Court certified pursuant to Section 207(1)(B) of the MTA 1945 that the evidence against the Applicant constituted prima facie evidence that he had committed the offence alleged and that if placed on trial he would be unfit to plead. The District Judge certified that the Applicant was suitable for a transfer to the CMH. Posing the question whether Section 207 was unconstitutional, Costello P said:-

"The Applicant's constitutional right to liberty is central to this case. It is to be found in Article 40.4.1.. This Article provides that no citizen shall be deprived of his personal liberty save in accordance with law. This does not mean that the Oireachtas is free to enact any legislation it wishes trenching on the guaranteed right. It is however, well established that legislative restrictions on the citizen's liberty must be in accordance with the fundamental norms of the legal order postulated by the Constitution (see King v AG [1981] IR 233). These fundamental norms are manifold -- that with which this case is concerned is the Constitutional requirement that the State should defend and vindicate the citizen's personal rights, and these include the right to liberty. So, if it can be shown that a law fails to defend and vindicate the right to liberty, it infringes a fundamental norm of the legal order postulated by the Constitution and will be invalid as trenching on Article 40.4.1 rights.

The right to liberty is of course not an absolute right and its exercise is in fact and in many different ways restricted by perfectly valid laws, both Common Law and Statutory. Adjudication on a challenge to restrictive laws will be helped by considering the object and justification advanced in support of the law. It is obvious that if the object of the law is to punish criminal behaviour, different considerations will apply than when the impugned law has a totally different object, such as the welfare of the person whose liberty is restricted.

The reasons why the 1945 Act deprives persons suffering from mental disorder of their liberty are perfectly clear. It does so for a number of different and perhaps overlapping reasons -- in order to provide for their care and treatment, for their own safety, and for the safety of others. Its object is essentially benign. But this objective does not justify any restriction designed to further it. On the contrary, the State's duty to protect the citizen's rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder. So it seems to me that the constitutional imperative to which I have referred requires the Oireachtas to be particularly astute when depriving persons suffering from mental disorder of their liberty and that it should ensure that such legislation should contain adequate safeguards against abuse and error in the interests of those whose welfare the legislation is designed to support. And in considering such safeguards regard should be had to the standards set by the recommendations and conventions of international organisations of which this country is a member.

I return now to Section 207.

It will be recalled that this section permits the Minister for Health to make a transfer order by which a patient in a mental hospital is transferred to the Central Mental Hospital, after the patient has been charged with an offence and brought before a District Justice who having decided that there is a prima facie case that the patient committed the offence and that he is unfit to plead certifies that he is suitable for transfer to the Central Mental Hospital. The patient is then examined by the Inspector who reports to the Minister. The Minister may then order his transfer.

The provisions of this section have been criticised. It has been stated:

"(a) That the person does not have a proper trial for the offence or on the question of his or her fitness to plead;

(b) The Judge, if satisfied that there is prima facie evidence that the person has committed the offence, has no option but to grant the certificates;

(c) No criteria are set out for the Minister's decision;

(d) There is no limit to the length of the person's detention in the Central Mental Hospital:

(e) It is not clear whether the charge goes into abeyance once the certificate is signed or whether it can later be revived".

These criticisms are not mine (although I adopt them) but are taken from the Department of Health's Green Paper (paragraph 23.13) in which the Department expressed the opinion that the Section was "seriously defective". I would add the following comments:-

1. The section may have been enacted to deal with a situation in which a patient may have committed a crime before the reception order was made. But it may also be operated in relation to offences allegedly committed by patients after the reception order was made. The section therefore enables a patient to be prosecuted for an offence who, because of mental illness may have lacked the mens rea required to support a conviction. In such circumstances to prosecute might well amount to an abuse of the criminal process . . ."

[2. . . .

3. . . .]

"4. There are no safeguards to protect the patient against a possible error in the operation of the Section. The only professional opinion on the question of the suitability of the Central Mental Hospital is that of the Inspector. There are no procedures for the review of his opinion.

5. There are serious defects not only in the transfer procedures but also in the provision which enables indefinite detention in the Central Mental Hospital. There is no practical way in which a transferred patient can procure his retransfer or his liberty or have his continued detention reviewed.

These defects in the statutory procedures have serious legal consequences as they directly impinge on the constitutional right to liberty of temporary patients. Such patients have a right to their liberty, at most, eighteen months after the reception order which restricted their liberty was made. If transferred under the Section then they may be detained there lawfully after the expiration of that period for an unlimited time which, as this case eloquently demonstrates, may extend over many years. The defects in the section are such that there are no adequate safeguards against abuse or error both in the making of the Transfer Order, and in the continuance of the indefinite detention which is permitted by the section. These defects not only mean that the section falls far short of internationally accepted standards but, in my opinion, render the section unconstitutional because they mean that the State has failed adequately to protect the right to liberty of temporary patients. The best is the enemy of the good. The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered (paragraph 16.13 of Green Paper). The prolonged search for excellence extending now for over fourteen years has had most serious consequences for the Applicant herein."

In the light of these conclusions, while Costello P's strictures are directed particularly at Section 207, I note that, at least under Section 207, there is a judicial process previously involving a Judge of the District Court. This is in contrast to the situation pertaining under Sections 163, 171 and 172 of the MTA 1945 as amended.

Counsel for Ireland and the Attorney General contends that there is clear authority which precludes the Court from having regard to the conventions of international organisations in deciding on the constitutional validity of the MTA 1945. He reiterated the test put forward by Flood J and his finding that the safeguards set out are an adequate protection against unlawful detention.

THE SUBMISSION ON BEHALF OF THE CONSULTANT PSYCHIATRISTS AND THE EHB

Counsel for the first three Respondents submits that on the evidence the Applicant was still mentally ill; Dr Art O'Connor had given his medical opinion that the Applicant should stay in the CMH for his own treatment. Bearing in mind his history, the Applicant had a potential to be dangerous. As for the lawfulness of the Applicant's detention, Counsel pointed out that in the Croke No 1 case the Supreme Court had said that the Applicant was not lawfully detained as a temporary chargeable patient any longer but this was because there had not been compliance with the requirements for extension of the period. In RT v The Director of the CMH, RT had been received as a temporary chargeable patient; after a serious incident and the hearing under the Mental Treatment Act 1945 (as amended), in which there was a judicial intervention, Costello P had decided that the absence of limits on the period of detention rendered Section 207 unconstitutional. Counsel contended that the Applicant's case involved only the exercise of an administrative power but with a duty to act judicially in the circumstances of a quasi-judical application and determination.

As for the first ground of challenge, that the making of a reception order is an administration of justice and would need to be made by a Judge, he pointed out that there are many classes of administrative decision which require a person to act judicially. He submitted that his clients had acted reasonably and within the powers in the MTA 1945 in detaining the Applicant for treatment and that there were safeguards in place which could be invoked.

As to the attitude of the Courts on such an enquiry he referred to the Application of Woods [1970] IR 154 at page 162 where O'Dalaigh CJ said:-

"I would add only one short observation on the judgment of the President. Article 34, s 4, Subs 6 of the Constitution says that "The decision of the Supreme Court shall in all cases be final and conclusive". The President of the High Court has interpreted the Article as prohibiting a person who is detained from seeking habeas corpus if he has made an earlier application which has been rejected by the Supreme Court. The High Court, on receipt of a complaint under Article 40, s 4, Subs 2 of the Constitution is required to order the release of the person detained unless satisfied that he is being detained in accordance with the law. The same duty rests on the Supreme Court. This means that both Courts are not confined to an examination of the illegality complained of by the applicant but are required to be alert for other grounds which could render the detention unlawful. But neither the High Court nor the Supreme Court warrants, by its decision in an application for habeas corpus, that every possible ground of complaint has been considered and ruled. This would cast on the court an impossible burden. Such matters as are considered by the Supreme Court in its judgments are finally decided for the High Court but this will not preclude an Applicant from later raising a new ground even though that ground might have been, but was not, put forward on the first application.

The principles which apply in litigation inter partes are not applicable in habeas corpus. The duty which the Court has under the Constitution of ordering the release of a person, unless satisfied that he is lawfully detained, requires that the Court should entertain a complaint which bears on the question of the legality of the detention -- even though in earlier proceedings the applicant might have raised the matter but did not do so. The duty of the Courts, to see that no one is deprived of his personal liberty save in accordance with law, overrides considerations which are valid in litigation inter partes. If therefore, the applicant raised matters before the President on this application which had not been ruled on a previous application -- and it is not clear from the documents before us whether such was the case or not -- the duty of the High Court under the Constitution was to examine such grounds and say whether or not it was satisfied that the Applicant was being detained in accordance with law."

This confirms the view that the High Court in conducting an enquiry under Article 40 is bound to conduct an enquiry of wide scope when appropriate, as in the present application, and must be alert for factors which would render the detention unlawful.

REFLECTIONS ON THE MATTERS IN ISSUE

Habeas Corpus, even a wide ranging inquiry under Article 40.4, which may probe more deeply than the common law Habeas Corpus procedure, needs initiation; a detainee in a mental hospital, with perhaps no interested kith and kin, is in practical difficulty in activating this process. In no way can this procedure, of possible availability only, be equated with or amount to a regular, periodic, automatic and independent scrutiny of the continued lawfulness of, and necessity for, the patient's detention. It is ironic to note that the Health (Mental Services) Act 1981, enacted but as yet never brought into force, contains provisions for psychiatric review boards composed of three persons including a doctor and a lawyer. Under s 41, provision is made for automatic review every two years in the case of long term detainees, such as the Applicant.

In light of the views expressed by the Supreme Court in Re Solicitors' Act 1954 in respect of the need for judicial intervention to strike off a Solicitor, a problem exists in reconciling what Kingsmill Moore J said about the need for the involvement of the judiciary in decision making of such basic effect with the reasoning in Clarke's case, where deprivation of liberty on the assessment of doctors, without any judicial intervention, was approved. The exercise of this power of decision is calculated to affect in the most profound and far-reaching way the lives and liberty of psychiatric detainees; accordingly it is hard to envisage this being described as a limited rather than a plenary power.

It is noteworthy that in the final paragraph of Chief Justice Finlay's judgment, with which the four other Judges of the Supreme Court agreed, In Re: D [1987] IR 449 at page 457 Finlay CJ said:-

"Though on my view of the case it does not arise for a decision, I feel I should express my view that, on my understanding of the provisions of Article 40, s 4 subs 2 of the Constitution, the High Court on the hearing of an application pursuant to that sub-article must reach a single decision, namely, whether the detention of the person concerned is or is not in accordance with law. If it is, then the application must be refused. If it is not, the person must be discharged from the custody in which he is. Such a procedure does not appear to me to admit of any supervision or monitoring of the interests of the person concerned, even allowing for a condition of mental retardation or other want of capacity".

Manifestly in the Applicant's case, since doctors have been treating him for schizophrenia with a psychopathic element and mood swings with a propensity for violence, an Order for his immediate release from custody could cause practical problems; such problems were coped with after his release on 14 July, 1994 pursuant to the Order of the Supreme Court. In this instance, this situation may be addressed under the provisions of Article 40.4.3 of the Constitution. Counsel for the first three Respondents says that his clients have acted reasonably and within the four walls of their powers under the MTA 1945 as amended. According to the Affidavit of the Consultant Psychiatrist, the Applicant should remain for treatment in the CMH for the present. Furthermore, no plan has been formulated on the length of time that the Applicant is expected to be detained at the CMH.

In O'Dowd v North Western Health Board [1983] ILRM 186 the Supreme Court was considering whether an action for false imprisonment could be brought in view of the provisions of S 260 of the MTA 1945 which provides that no civil proceedings shall be instituted in respect of an act done in pursuance of the MTA 1945 save by leave of the High Court. S 260 inhibits an action unless a Defendant acted in bad faith or without reasonable care. In the course of his judgment, which dissented from the judgment of O'Higgins CJ and Griffin J, Henchy J made some illuminating comments on the pitfalls of diagnosis of the psyche (at p 198):-

"A doctor, particularly a psychiatrist or a doctor examining a person suspected of suffering from a mental illness, is not necessarily wanting in reasonable care if he makes a wrong diagnosis. The human psyche is so complex and concealed, human conduct so susceptible of different interpretations, clinical tests so apt to mislead, and the aetiology of certain types of mental illness so lacking in precision, that a psychiatrist or a doctor plying his psychiatric skills may be driven, in the absence of an opportunity of long term and close observation, to acting to some extent on second-hand information, particularly information supplied by someone who lives with, or who has been in close contact with the patient. This is particularly so when the doctor's services are called upon to determine a course of action based on a complaint of dangerously irrational behaviour".

Subsequently at p 204 Henchy J, having recited Articles 40.3.1 and 40.4.2 of the Constitution, said:

"It was the implementation of those constitutional guarantees that caused the Legislature to hedge round the making of a chargeable patient reception order with the formalities mandated by the Act and the regulations made under it. As Clarke's case shows, some of those formalities are only formalities; but others are clearly obligatory, designed to implement the constitutional guarantees I have quoted, and in particular to ensure that, not even for a short period, will a citizen be unnecessarily deprived of his liberty and condemned to the tragic and degrading status of a compulsory inmate of a mental hospital, with the dire social consequences that such a fate is likely to have on his future and on that of his relations."

Henchy J's comments warn of the problems of the sources of information on which psychiatric diagnosis is based and the drastic results which may enure from such assessment.

Two principles are relevant to the approach of the Court. First, the Supreme Court has recognised that concepts relating to human rights evolve over the years and in considering rights protected by the Constitution the Court, recognising this evolution, should apply contemporary norms rather than an originalist approach of assessing the present situation according to the norms and values existing at the time when the Constitution was enacted in 1937. In The State (Healy) v Donoghue [1976] IR 325 at page 347 Finlay CJ said of the Preamble to the Constitution:-

". . . In my view this Preamble makes it clear that rights given by the Constitution must be considered in accordance with the concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The Preamble envisages a Constitution which can absorb or be adapted to such changes. In other words the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to those virtues at the time of its enactment."

In the field of psychiatry there have been huge advances in knowledge not just since the time of Dean Swift but also since 1945. Norms and standards acceptable then may no longer suffice when now tested against the touchstone of the Constitution.

The second guiding principle concerns the approach of the Court to the construction of a law which tends to affect personal liberty guaranteed by the Constitution. Such an Act encroaching on liberty should be strictly and narrowly construed. Since King v Attorney General [1981] IR 233 the Supreme Court have indicated that laws limiting the liberty of the person must not offend against the 'fundamental norms of.the legal order postulated by the Constitution'. Accordingly a law which trammels liberty must be consistent with a legal order based on democratic principles and be protective of fundamental rights.

The certainties implicit in the judgment in Clarke's case in 1949 may be diluted by now with increasing knowledge about the psyche, changing patterns of behaviour, conflicts between psychiatrists as to the nature of mental illness and awareness of the abuses of psychiatric treatment in other countries.

The United States Supreme Court has taken the line that since civil commitment involves deprivation of liberty and social stigma for the patient detained there must be due process protection. This approach is in marked contrast to the attitude of The Irish Supreme Court in Clarke's case.

CONCLUSIONS

In the circumstances of the Applicant's detention it is difficult to envisage how the issues raised can be dealt with unless the question is addressed of the constitutional validity of the statutory provisions under which he is held in the CMH.

As to the first prong of the Applicant's challenge, to the effect that the making of a reception order is an administration of justice requiring a judicial ruling, Counsel for the Respondents submitted that the reception order came into that category of administrative decision which required the decision-maker to act in a judicial manner. They submitted that there were safeguards, including the statutory safeguards provided in the Mental Treatment Act 1945 as amended, and these could be invoked. Some of the safeguarding procedures may be invoked frequently and those infrequently utilised still remain available. On this, reference was made to what Murphy J said in Nova Media Services Limited v Minister for Posts and Telegraphs Ireland and the Attorney General, [1984] ILRM 161, in dealing with the case of an illegal broadcasting station, at page 169:-

"However, the effect of a statute is clear. It does not wither away from lack of use and it cannot be repealed, waived or abandoned even by the express decision or the agreement of the Executive or any administrator, less still by an explicit representation by public representatives or State agency".

The Respondents are entitled to point to the existence of these safeguards and do not have to produce evidence as to how frequently or efficaciously they are invoked. In reality, I have little doubt that, for example, a communication to the President of the High Court would meet with a speedy and effective response. Nor have the safeguarding provisions fallen into "a limbo of desuetude" to adopt the felicitous language of Henchy J in Waterford Harbour Commissioners v British Railways Board (unreported Supreme Court, 18 February, 1991). In summary, Counsel submitted that the Respondent Psychiatrists and Health Board acted within the provisions of the MTA 1945 as amended, being an Act which enjoys the presumption of constitutionality.

The guiding principle when dealing with applications concerning personal freedom is that a statute restrictive of a person's liberty should be very strictly and narrowly construed. In Attorney General v McBride, [1928] IR 451 where the extended arrest provisions of the Public Safety Act, 1927 were in issue, Hanna J said at 454:-

"It is the first duty of the Courts to show the greatest solicitude in protecting the liberty of the subject from anything but a strict application of a statute of this nature, even though such statute be essential to the public safety".

In the State (Royle) v Kelly, [1974] IR 259 Henchy J expressed himself against any attempt to draw up a catalogue of the factors which would render a detention unlawful. Dealing with the phrase "in accordance with law" in Article 40.4.2 he said:-

"The expression is a compendious one and is designed to cover these basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders a detention unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt to do so would only tend to diminish the constitutional guarantee."

In RT v The Director of the Central Mental Hospital, Costello P was dealing with the defects in the statutory procedures as they impinge on the constitutional right to liberty of temporary patients. These are the more usual temporary chargeable patients detained for between 6 and 18 months and known as "pink form patients". Such patients have a right to their liberty at most 18 months after the reception order which restricted their liberty was made. The President made the point that, if a pink form patient was transferred under Section 207, then he might be detained after the expiry of the 18 months for an unlimited period of time which might extend over many years. He said that the defects in Section 207 are such that there are no adequate safeguards against abuse or error both in the making of the transfer order, and in the continuance of the indefinite detention, as permitted by the section, and accordingly S 207 was invalid as repugnant to the Constitution.

The Applicant is now held under a chargeable patient reception order and is a "white form patient"; the Applicant was received and detained as a person of unsound mind under Sections 163, 171 and 172 of the Mental Treatment Act 1945. The reception order having been made, the mental hospital authority received and took charge of the Applicant and can detain him "until his removal or discharge by proper authority or his death" under Section 172(1). This indefinite detention without any automatic independent review seems comparable to the indefinite detention permitted by Section 207 in respect of which Costello P said:-

"These defects not only mean that the section falls far short of internationally accepted standards but, in my opinion, render the section unconstitutional because they mean that the State has failed adequately to protect the right to liberty of temporary patients."

His quotation from Voltaire is most apt "le mieux est l'ennemi du bien". I have already quoted his apposite comment that:-

"The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered (paragraph 16.13 of Green Paper). The prolonged search for excellence extending now over fourteen years has had most serious consequences for the Applicant herein."

Bearing in mind that the Applicant was diagnosed prior to his present treatment as being subject to mental illness, one might wonder, even if there was provision in the MTA 1945 as amended for ensuring that the safeguards provided by the Act are brought to the attention of the patient (which there is not), whether the patient would have the literacy or competency to activate any of the safeguarding procedures; and whether any of his kith or kin would have the desire or the capacity to initiate such a process on the patient's behalf.

Clarke's case was dealing with detention under Section 165 of the MTA 1945 which involves a member of the Garda Siochana detaining a person believed to be of unsound mind where the Garda is of opinion that it is necessary for the public safety or that of the person concerned that the person be placed under care and control. Safety aspects were involved and to the fore. In my view, neither the High Court nor the Supreme Court had indefinite detention without any automatic review in their contemplation. In Clarke's case the Supreme Court were concentrating on Section 165 which provides for the making of a recommendation, whereas Section 172 deals with the effect of a chargeable patient reception order being made, namely, the reception and taking charge of the patient to whom the Order relates and his detention until removal or discharge by proper authority or death, ie detention of an infinite duration without automatic independent review. The Health (Mental Services) Act, 1981 provided, inter alia, for an appeal against detention and an automatic review of long-term detention by a specialised tribunal. While the 1981 Act was enacted, it has never been brought into force and I respectfully echo Costello P's comment about this. While Clarke's case may govern the position with regard to Section 165, it does not cover sections allowing for indefinite detention. I agree with Costello P that the purpose of the Mental Treatment Act 1945 as amended was to provide for the care and treatment of patients for their own safety and for the safety of others. The State has to be particularly solicitous and vigilant in the protection of the citizen's rights, particularly the right to liberty, when dealing with a person who is vulnerable and disadvantaged such as a patient suffering from mental disorder. The Oireachtas has to be careful when framing statutes which deprive such a person of liberty; it is essential that the legislative framework should contain proper safeguards to lessen the risk of error or abuse in the care and treatment of such patients.

While the Minister for Health and the Inspector of Mental Hospitals may be presumed to act properly and to observe constitutional proprieties in carrying out their functions under the Mental Treatment Act 1945 as amended, their roles fall far short of being an automatic independent review.

In view of the string of cases cited which preclude the High Court from putting the weight of the European Convention or the United Nations Principles on to the scales in assessing and testing the constitutional validity of an Act of the Oireachtas, I have put out of my considerations any temptation to be affected by their persuasive influence.

In applying the touchstone of the Constitution as suggested by Henchy J, I have come to the conclusion that the effect of a chargeable patient reception order under Sections 163, 171 and particularly Section 172, which allows for detention until removal or discharge by proper authority or death, without any automatic independent review, falls below the norms required by the constitutional guarantee of personal liberty. The State accordingly has failed to respect, and as far as practicable by its laws, to defend and vindicate the personal rights of the citizen, particularly the right to personal liberty. There are no adequate safeguards to protect the Applicant against an error in the operation of Section 172. There is no formal review procedure in respect of the opinion of the RMS and of the Inspector of Mental Hospitals. In the absence of an independent review of the decision to detain and the lack of an automatic review of long-term detention of a "white card patient", such as the Applicant, the provisions of Section 172 of the Mental Treatment Act 1945, as amended, are repugnant to the Constitution. Since I have decided the issue of the constitutionality of Section 172 on this ground, I should exercise reticence and do not express a view on the other ground put forward by the Applicant, namely, that other Sections of Part XIV are unconstitutional due to the lack of judicial or quasi-judicial intervention prior to the reception and detention of a patient.

Accordingly, being satisfied that the Applicant is being detained in accordance with the law, namely, the Mental Treatment Act 1945, as amended, but that this law, specifically Section 172, is invalid having regard to the provisions of the Constitution, I shall refer the question of the validity of this law to the Supreme Court by way of Case Stated.

In the meantime I will hear the submissions of Counsel in respect of the appropriate course to be adopted with regard to the Applicant, bearing in mind that he has been undergoing treatment in the CMH. In his letter dated 15 November, 1994, Dr Art O'Connor, Consultant Forensic Psychiatrist, said that the Applicant was receiving standard medication and other support treatments appropriate for his condition.