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Judgment
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Neutral Citation: [2014] IEHC 592 THE HIGH COURT JUDICIAL REVIEW [2014 No. 319JR] BETWEEN A.X. APPLICANT AND
THE MENTAL HEALTH TRIBUNAL AND THE CLINICAL DIRECTOR OF ST. JOHN OF GOD’S HOSPITAL RESPONDENTS JUDGMENT of Mr Justice David Keane delivered on the 19th of December 2014 Introduction The admission 3. As he was required to do under s. 12 (2) of the 2001 Act, the member concerned immediately applied to a registered medical practitioner for a recommendation that the applicant be involuntarily admitted to a specified approved centre. 4. The registered medical practitioner concerned, having examined the applicant and being satisfied that she was then suffering from a mental disorder, made a recommendation under s. 10 of the 2001 Act in the appropriate form that the applicant be involuntarily admitted to the Elm Mount Unit of St. Vincent’s University Hospital in Elm Park, Dublin 4. 5. A consultant psychiatrist on the staff of that hospital carried out an examination of the applicant that evening and thereupon, being satisfied that the applicant was then suffering from a mental disorder giving rise to a serious likelihood that she would cause serious harm to herself or to other persons, made an order for the reception, detention and treatment of the applicant. In the box provided for setting out the reasons upon which that opinion was based, the consultant psychiatrist wrote:
(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or other persons, or (b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission and, and (ii) the reception, detention and treatment of the person concerned would be likely to benefit or alleviate the condition of that person to a material extent.” 8. The clinical director of the Elm Mount Unit then arranged for the immediate transfer of the applicant to the hospital, in accordance with the terms of s. 20 of the 2001 Act, on the basis that the applicant would be under the care of her previous consultant psychiatrist, and in a secure setting, there. Post-admission 10. In this instance, the tribunal was convened on the 15th May 2014. The Commission assigned the applicant’s solicitor to represent her on or about the 28th April 2014 and he met with her on the 1st May 2014 and on the day of the hearing. An independent consultant psychiatrist examined the applicant; interviewed the consultant psychiatrist responsible for the applicant’s care and treatment; and reviewed the applicant’s records on the 8th May 2014. The independent psychiatrist’s report 12. The independent consultant psychiatrist gave the following clinical description of the applicant’s mental condition at that time (in pertinent part):
… She explained that she had been brought to the hospital against her will by the gardai and that prior to her admission she had noticed unusual “patterns” in the community. She did not wish to elaborate on these in much detail but her medical records refer to her noticing colours that she believed related to her personally. When asked during the interview if these patterns continued to occur in hospital, she explained an unusual “pattern” in great detail. This consisted of a log, recorded on the back of a brown envelope, of staff entering her room at night, what they were wearing and how they behaved towards her. She asked me if I thought their behaviour was unusual and was circumspect about her own view. She checked in with me if she was appearing to me too talkative and expressed the view that she could not “play the games” as well as other patients. She appeared to have paranoid delusions regarding staff and also her neighbours. She explained that, prior to admission, she had stopped going out of her home due to the strange patterns she had observed, which frightened her, as a result she had been unable to go to the shops for food, and had eaten far less and lost weight. She denied having any dispute with her neighbours however and rapidly changed the subject. The form of the [the applicant’s] speech did not indicate the presence of thought disorder. She was subjectively and objectively euthymic. She had no suicidal intent and her insight into her illness was partial. She accepted that she had a mental illness and in the past had accepted medication for this but she felt unhappy taking the medication prescribed for her and suspicious of it, indicating that it had not been explained to her. She was unhappy to be in hospital and, in particular, on St Peter’s ward.” 14. In the section of the report dealing with the previous history and duration of the applicant’s illness, the report continues:
… [The applicant] was discharged from hospital in Dec 2013 and her notes indicate that she was not adherent to medication since this time. She did not attend outpatient appointments subsequently. Her present admission was precipitated by an episode where [the applicant] was seen by her neighbours to be brandishing a knife; they called the gardai and she was brought to St. Vincent’s University Hospital. She was extremely agitated and aggressive there and needed to be restrained and to receive intramuscular sedative medication. Her previous admission to hospital was precipitated by an episode where [the applicant] set fire to furniture in a communal area of the building where she lives.”
[The applicant] has a long history of poor insight and non complicance with treatment. Risk of harm to others: As described, [the applicant] prior to admission was brandishing a knife. Prior to her previous admission she set fire to furniture in a communal area of her building. Risk of self neglect: [The applicant] was emaciated on admission as a result of neglecting her diet as a direct consequence of her psychotic symptoms. Her notes indicate that during this admission, [the applicant] was of the belief that her appetite was under an external influence or control.” The review 19. In the affidavit that he swore on the 30th May 2014 to ground the present application, the applicant’s solicitor avers that the applicant instructed him to apply to the tribunal to revoke the admission order. 20. The only material before the Court concerning the hearing that took place before the tribunal is the note of that hearing taken by the applicant’s solicitor and exhibited to his affidavit. From that note, a number of pertinent facts emerge. The persons present were the three members of the Tribunal, the responsible consultant psychiatrist, the applicant and her solicitor. The responsible consultant psychiatrist gave evidence to the Tribunal and was questioned by its members (though not, it would appear, in any detail by the applicant’s legal representative). The evidence of the responsible consultant psychiatrist 22. The responsible consultant psychiatrist then described her interaction with the applicant in the following terms. Initially, upon admission, the applicant was paranoid and refused to engage with the consultant. The applicant interjected at this point in the evidence to state that she would have been willing to engage at the outset but had not been asked to do so. The consultant continued that, on admission, the applicant was, in the consultant’s opinion, quite incoherent and difficult to understand. Intra muscular medication had to be administered and the applicant required four injections. The day after her admission, the applicant began to engage. The medication that was then being administered to the applicant was identified, its effects were described and the proposed course of pharmacological treatment of the applicant’s condition was explained. 23. Concerning the presentation of the applicant at the time of the review, the responsible consultant physician stated that there had been some improvement in that regard, in that the applicant was more cooperative and, generally, was taking her medication, although without fully trusting it. The applicant was still disorganised in her thinking and, while coherent could still be delusional, harbouring intense delusional beliefs with a persecutory content but remaining guarded in expressing them. In response to questioning, the consultant expressed the opinion that the applicant then had no insight into her illness in that, while she acknowledged that she has a mental illness, she did not believe that she was currently unwell. Pressed further, the consultant expressed the view that the applicant had zero insight into her illness and that, in respect of her past admissions, she had been regularly discharged while still unwell. 24. A key passage in the note taken by the applicant’s solicitor records the following exchange:
26. Another member of the tribunal then asked the consultant about risk. The consultant responded that the applicant was a risk because of the reported episode with the knife and also because of her self-care issues. The consultant expressed the view that the applicant then lacked capacity because she could not weigh up the benefits of the medications that she had been offered; was paranoid regarding her treatment; and was thought disordered. 27. The consultant confirmed that she was proposing to make a renewal order in respect of the detention and treatment of the applicant on both the risk ground and the therapeutic ground. One of the members of the Tribunal then queried whether detention was necessary on the risk ground. The consultant stated that, while the risk of self-harm was greater than the risk of harm to others, and accepting that the accuracy of the reports being made by the applicant’s neighbours may be questionable, she did believe that there was a real and substantial risk to others from the applicant. The applicant’s solicitor put it to the consultant that there was insufficient evidence to establish a serious likelihood of the applicant causing immediate and serious harm to herself or to other persons unless detained for treatment but the consultant did not agree. 28. The applicant then addressed the Tribunal in terms that might well have given rise to some additional concern. She referred to doors that she had locked in the house that she occupies alone being unlocked by other parties, and to documents in her possession and documents that she has posted to a journalist being altered by parties unknown. In answer to a question put by a member of the tribunal, the applicant did accept that she has a mental illness, which is schizophrenia, but expressed disagreement with her treatment plan and a preference for some “talk therapy” instead. 29. At the conclusion of the hearing, the applicant’s solicitor submitted that the Tribunal should revoke the admission order in respect of the applicant on the basis that the statutory criterion under section 3(1)(a) had not been met; because the applicant had never been detained for the purpose of treatment before; because this was the applicant’s first involuntary admission during the thirty years she has been beset by mental illness; and because the detention of the applicant for treatment was not required. The tribunal’s decision
(i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or (ii) if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice, affirm the order, or (b) if not so satisfied, revoke the order and direct that the patient be discharged from the approved centre concerned.” 32. In its written determination, delivered shortly after the hearing on the 15th May 2014, the tribunal’s decision concerning the applicant was: “to affirm the admission order dated the 27th April 2014.” 33. The tribunal gave the following reasons for that decision:
The Tribunal noted that the patient was acutely unwell on admission, was incoherent and distressed. Prior to admission, the patient had not been engaging with the medical services and was non-compliant with medications on admission. The patient received four injections, which helped improve the patient’s cooperation and coherence. However, she remained thought disordered, had persecutory delusions and bizarre ideas. The patient has recently been commenced on Risperidone, and it has yet to achieve a full therapeutic effect. The patient lacks insight into the severity of her illness, and the Tribunal shares the opinion of the responsible consultant psychiatrist that it would be premature to discharge the patient from the carefully controlled environment of the approved centre at this time. The Tribunal is of the opinion that the patient is benefiting from the treatment currently being administered to her, and that she is benefiting to a material extent. For all of the foregoing reasons, the Tribunal is satisfied that the affirmation of the admission order is in the best interests of the patient.” 34. Under s. 15(1) of the 2001 Act, an admission order remains in force for a period of 21 days from the date upon which it is made and then expires. However, under s. 15(2), that period may be extended for an initial further period not exceeding three months by order (known as “a renewal order”) made by the consultant psychiatrist responsible for the patient’s care and treatment. 35. Having examined the applicant on the 14th May 2014, the day prior to the review of the applicant’s detention by the tribunal, the consultant responsible for the treatment and care of the applicant made a renewal order in respect of the applicant’s detention on the 16th May 2014, the day after that review, extending the applicant’s detention for a further period ending on the 17th August 2008. 36. The applicant acknowledges that a further independent consultant’s report was prepared following receipt by the Commission of the said renewal order, as is required under s. 17, subs. 1(c) of the 2001 Act. That report is dated the 23rd May 2014 and is based upon an examination of the applicant and a review of the applicant’s records conducted on the 21st May 2014, and an interview with the consultant psychiatrist responsible for the applicant’s care, conducted on the 22nd May 2014. The independent consultant psychiatrist concerned (who was not the consultant responsible for the preparation of the report required for the first review) expressed the opinion that, as of the date of the second report, the applicant was suffering from a mental disorder within the definition of that term incorporating the provisions of s. 3(1)(b) of the 2001 Act. 37. The second report notes, inter alia, that:
… [The applicant] has been repeatedly non-compliant with treatment, and is declining some of her treatment in the hospital. Her insight into her illness is severely impaired, and her future compliance is likely to be poor, outside the approved centre.”
[The applicant] is reported to have been highly agitated and was carrying a knife before her admission. If she remains paranoid and defaults from treatment, she may pose a risk to others due to her agitation and hostility. She is also at risk of retaliation in this context.” 40. The Court is given to understand that, happily, the applicant has since been discharged from hospital. The complaint
We have been advised by our client that she wishes to appeal the decision of the Tribunal and we are currently putting this in hand. We therefore require clarification from the Chairperson of the Tribunal as to whether in the opinion of the Tribunal my client satisfied section 3 1 (a) or section 3 1 (b) or both as same will be germane to my client’s appeal.”
The proceedings The relief sought
(ii) An order of certiorari quashing the decision of the tribunal dated the 15th May 2014 to affirm the admission order in respect of the applicant made on the 27th April 2014. (iii) In the alternative to the relief sought at paragraph (ii), an order of mandamus requiring the tribunal to provide additional reasons for its decision of the 15th May 2014 to affirm the said admission order. (iv) An order of certiorari quashing the renewal order made in respect of the applicant’s detention by, or on behalf of, the hospital. (v) A declaration that the detention of the applicant is unlawful. The arguments 49. The applicant further contends that, should the decision of the tribunal be found to be unlawful on any of the preceding grounds, then it follows both that the detention of the applicant was unlawful thereafter and that the subsequent renewal order in respect of the applicant’s detention is invalid also. 50. The tribunal joins issue with the applicant on each of the two broad arguments just described. The hospital joins issue with the applicant on the second argument, insofar as that seeks to impugn the renewal order made by or on behalf of the Clinical Director of the hospital. Both respondents argue that the domino theory upon which the applicant relies - that a defect in the review of the original admission order taints any subsequent renewal order - has been expressly rejected in Irish law and that, since no separate issue is raised in respect of the renewal order on foot of which the applicant was detained when these proceedings were heard or, indeed, commenced, the proceedings are a moot which the Court should decline to entertain. The law on reasons 51. In M.D. v. Clinical Director of St. Brendan’s Hospital [2008] 1 IR 632, Hardiman J. had the following to say about the statutory requirement that the Tribunal provide reasons for its decision on review (at p. 644):
[18] This, of course, is absolutely essential if the decisions of this powerful body are to be subject to proper review. It is important in the circumstances of this case to recall that neither the consultant psychiatrist nor the tribunal can avoid or frustrate the review simply by the making of an inadequate or insufficient record of the exercise by them of the very considerable powers conferred upon them by statute.” 53. First, O’Neill J. adopted the analysis of McGuinness J. in Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617 and that of the former Supreme Court (per O’Byrne J.) in In re Philip Clarke [1950] I.R. 235 in respect of the Mental Treatment Act 1945, and applied each to the 2001 Act, concluding that a purposive approach to interpretation is appropriate in construing that legislation, which is of a paternal character, being clearly intended for the care and custody of persons suffering from a mental disorder. 54. Second, O’Neill J. made the following point (at p. 227):
“The patient continues to suffer from persecutory delusions and while her insight has improved somewhat she continues to require structured residential treatment and the tribunal affirms the order.” The reasons given in the order for the decision were as follows:- “In affirming the order the tribunal held that:- (1) there was clear evidence from Dr. O’Neill’s report and the patient’s own responses that the patient continues to suffer from a mental disorder, persecutory delusions and schizophrenia; (2) the patient benefits from the structured environment which her involuntary status ensures. She herself accepted that she is not ready for discharge and also that the treatment that she has been receiving has been beneficial to her; (3) in the event of her being changed to voluntary status compliance with medication and occupational therapy would not be guaranteed.” 57. The third helpful principle to emerge from the decision in M.R. concerns the inter-relationship between the separate criteria for establishing a mental disorder under s. 3(1)(a) and s. 3(1)(b) of the 2001 Act. In that regard, O’Neill J. observed (at pp. 221-2):
[23] As is clear from this section there are two separate bases upon which “mental disorder” can be established. [24] The first of these is set out in s. 3(1)(a) and it is where the mental illness, severe dementia or significant disability is such that there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons. [25] The second basis is where the severity of the mental illness, dementia or disability is such that the judgment of the person concerned is so impaired that a failure to admit the person would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission and that the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition to a material extent. [26] I am quite satisfied that these two bases are not alternative to each other and indeed it would be probable in my view that in a great many cases of severe mental illness there would be a substantial overlap between the two. Thus it would be very likely in my opinion that in a great many cases in which a person could be considered to fall within the categorisation in s. 3(1)(a) that they would also be likely to fall within s. 3(1)(b). To a much lesser extent, it is probable that persons who are primarily to be considered as falling within s. 3(1)(b), would also be likely to have s. 3(1)(a) applied to them.”
These are as follows:- (1) the severity of the illness, disability or dementia must result in the judgment of the person concerned being impaired to the extent that failure to admit the person to an approved centre is likely to (2) lead to a serious deterioration in his or her condition or prevent the administration of appropriate treatment that can be given only on such admission and (3) that the reception, detention and treatment of the person in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent. [36] These elements in s. 3(1)(b)(i) and (ii) are in my view clear and self explanatory. It is perhaps worth drawing attention to the fact that in 3(1)(b)(i) there are alternative provisions, namely that the failure to admit to an approved centre would be likely to lead to a serious deterioration in the condition of the person or that the failure to admit into an approved centre would prevent the administration of appropriate treatment that could be given only by such admission.” 60. I now propose to perform a similar exercise by reference to the reasons provided by the tribunal for its decision to affirm the admission order detaining the applicant in this case. The first essential element of s. 3(1)(b) identified by O’Neill J. is that the severity of the illness, disability or dementia from which the person concerned suffers, is causing the judgment of that person to be impaired. The reasons provided by the tribunal on this point include clearly expressed findings that the applicant was suffering from paranoid schizophrenia, was thought disordered, had persecutory delusions and bizarre ideas, and lacked insight into the severity of her illness. In my view, those findings were entirely consistent with all of the evidence before the Tribunal, both written and oral. 61. The second necessary element for a decision under s. 3(1)(b) is that a failure to detain the person concerned would lead to a serious deterioration in the condition of that person or would prevent the administration of appropriate treatment, which could only be given in the context of such detention. In this case, the tribunal clearly stated, as part of its reasons, that the applicant was acutely unwell on admission, and was incoherent and distressed; that, prior to admission, the applicant had not been engaging with the medical services and was non-compliant with medications on admission; that the applicant received four injections, which helped improve her cooperation and coherence; and that the applicant had recently been commenced on Risperidone, which had not yet achieved a full therapeutic effect. 62. The third essential element for a decision under s. 3(1)(b) is that the detention of the person concerned would be likely to benefit or alleviate the condition of that person to a material extent. The reasons given by the tribunal for its decision on review in this case specifically include a finding, based on the evidence before it, that it would be premature to discharge the patient from the carefully controlled environment of the hospital at that time, as well as a finding that the applicant was benefiting from the treatment then being administered to her, and was benefiting to a material extent. 63. Just as O’Neill J. was on the particular facts presented in M.R., I am quite satisfied by reference to the facts of this case that the decision of the tribunal to affirm the order on foot of which the applicant was detained is valid both in substance and in form. 64. I am reinforced in that conclusion by the following observation of O’Flaherty J. in Faulkner v. Minister for Industry and Commerce [1997] ELR 107 (at 112), a case which involved a challenge to a Labour Court recommendation that had been expressed in a single sentence:
66. The applicant’s first argument is that the tribunal erred in law in affirming the admission order in respect of the applicant without making any finding, whether directly or by inference, that the applicant’s mental illness met the additional criteria for amounting to a mental disorder under s. 3 (1)(a) of the 2001 Act (upon which finding or opinion the said admission order had been based). However, the relevant part of the tribunal’s task, in conducting a review of a patient’s detention under s. 18(1)(a) of the 2001 Act, is to determine whether it is satisfied that the patient concerned is suffering from a mental disorder. That provision is couched in the present tense, as is the equivalent provision concerning appeals to the Circuit Court from decisions of the tribunal under s. 19(4) of the 2001 Act. 67. In Han v. The President of the Circuit Court [2011] 1 IR 504, Charleton J. concluded that he was obliged to give grammatical and ordinary sense to the use of the present tense in the latter provision. I believe I am compelled to do the same in relation to s. 18(1)(a). It follows that the task of the tribunal was not to review the correctness of the consultant psychiatrist’s opinion that the applicant was suffering from a mental disorder when an admission order was made on the 27th April 2014, but rather to form its own view concerning whether the applicant was suffering from a mental disorder when the review occurred on the 15th May 2014. 68. In Gallagher v. Mental Health Tribunal [2013] IEHC 617, O’Neill J pointed out that, in considering whether or not a patient has a mental disorder in the context of an appeal to the Circuit Court under s. 19 of the 2001 Act, that court is entitled to reach its own conclusion on that issue, regardless of what conclusions had been reached earlier, either in the context of the making of an admission or renewal order, or in the context of a review by the tribunal of any such order. It seems to me clear that the same must be said about the tribunal’s entitlement (indeed, obligation) to come to a conclusion on the same issue independent of any prior conclusion reached on that issue in the context of the making of an admission order. 69. This conclusion is borne out by the fact that, in M.R., O’Neill J. expressly upheld a tribunal decision, based on a finding of mental disorder under the s. 3(1)(b) criterion, to uphold a renewal order that had been based on a finding of mental disorder under the s. 3(1)(a) criterion. 70. The applicant’s second argument is that the tribunal erred in failing to apply the criteria under either s. 3(1)(a) or s.3(1)(b) in affirming the said admission order. I have already found, for the reasons set out above, that the reasons furnished by the tribunal make it plain that it did, in fact, apply the s. 3(1)(b) criterion. I have also already implicitly rejected the applicant’s third argument that, insofar as it did apply the criterion under s. 3(1)(b), the tribunal erred in failing to apply the criterion under s. 3(1)(b)(i). 71. The applicant’s fourth and final argument on the principal issue is the general one that, quite simply, the tribunal failed to provide adequate reasons for its decision to affirm the admission order. This argument invokes what Kelly J. referred to in Deerland Construction Ltd v. Aquaculture Licence Appeals Board [2009] 1 IR 673 (at 688) as the “abundance of case law indicating what must be done by a body, such as the first respondent [in that case], if it is to satisfy its obligation of setting forth reasons for its conclusions.” 72. Counsel for the applicant sought to rely, in a general way, on the decision of Kelly J. in Mulholland v. An Bord Pleanála (No. 2) [2005] IEHC 306, a case involving a contested application for leave to seek judicial review of a grant of planning permission by the respondent board. The applicants argued that they had established substantial grounds, as required under s. 50 of the Planning and Development Act 2000, for challenging the validity of the board’s decision on the ground, inter alia, that it had failed to comply with the significant obligation imposed on it under s. 34(10) of the 2000 Act to state the main reasons and considerations on which its decision was based. In particular, the applicant relies on the principles set out in the following passage from the judgment (at p. 465):
(1) give an applicant such information as may be necessary and appropriate for him to consider whether he has a reasonable chance of succeeding in appealing or judicially reviewing the decision; (2) arm himself for such hearing or review; (3) know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider; and (4) enable the courts to review the decision.” 74. It should not be overlooked that, in Deerland Construction Ltd, Kelly J. also cited with approval the following dictum of Murphy J. in O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 (at 757):-
76. Accordingly, I can find no basis for the applicant’s contention that the tribunal failed to provide adequate reasons for its decision to affirm the admission order and I reject that contention. Remaining issues 78. However, I am conscious that the application at hand concerns a deprivation of liberty (albeit a past one), and that the applicant may wish to exercise her entitlement to appeal this decision. In those circumstances, in order to expedite matters and to allow for greater efficiency in the conduct of the litigation, I propose to determine the remaining issues in the present application as though some inadequacy or deficiency had been identified in the reasons provided by the tribunal for affirming the admission order in respect of the applicant’s detention. Domino theory
… The Court cannot see and it does not believe that there is any authority for the proposition that s. 14 cannot work at all, simply cannot be operated, if there is a defect in the execution of a removal under s. 13. There was no argument advanced as to why that proposition is true and it would appear to be contrary to the scheme and spirit of the Act. … We will repeat, as was said by this Court in the previous case of M.D. that [the 2001 Act] is a scheme of protection and a very elaborate and very necessary scheme of protection because of course, everybody, even from general knowledge, is aware of the serious nature of the provisions to detain people in mental hospitals which have taken place in fairly recent times in other jurisdictions, and is aware of the judgment of the former President, Mr. Justice Costello, condemning the procedures formerly in force in this jurisdiction and mandating the establishment of a firm scheme or regime of protection. But this is not a case which calls for protection under Article 40 of the Constitution, fortunately. The scheme of Article 40 is that the Court orders the person detaining, [the clinical director] in this case, to certify. She did certify. She certified relying on the admission order and the obligation of the Court, the High Court or this Court on appeal, when these things are done is that we must order the release of such person from detention unless satisfied that he or she is being detained in accordance with law. The position in this case is that we are satisfied that she is being detained, as of today, and was when the case was before the High Court, being detained in accordance with the law and we will decline to order her release.”
83. In giving judgment for the Court on that appeal, Kearns J. cited the earlier decision of Hardiman J. for the Court in C v. Clinical Director of St. Brigid’s Hospital before continuing (at p. 792):
‘The stipulation in Article 40, s. 4, sub-s. 1 of the Constitution that a citizen may not be deprived of his liberty save ‘in accordance with law’ does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded.’ ” 85. Confronted with this difficulty, the applicant initially put up two arguments. The first is that the decisions in R.L. and E.H., at least, can be distinguished from the present case because each of those cases involved an alleged unlawfulness that occurred prior to the original admission order in respect of the patient concerned, whereas the present case involves “the essential procedural safeguard” of a review hearing. 86. I cannot accept that argument because it seems to me to represent a distinction without a difference. Compliance with the law in connection with any detention (as well as in the review of any detention) is an essential bulwark of liberty to which every citizen is entitled. The Supreme Court drew no such distinction as the applicant now seeks to make when Hardiman J. pointed out in C v. v. Clinical Director of St. Brigid’s Hospital that the Court did not feel called upon by authority to apply to that case the sort of reasoning that would be applied if it were a criminal detention or to investigate whether previous matters, which might have a causal relationship to the detention then at issue were invalid. It must also be remembered that a renewal order, such as the renewal order made in the present case on the 16th May 2014, can only be made if the patient has been examined by a consultant psychiatrist within the week immediately preceding the making of the order (as the applicant was on the 14th May 2012) and if that consultant certifies in consequence that the patient continues to suffer from a mental disorder. It is in my view, absolutely inimical to good order in the treatment process and ultimately not in the best interests of someone suffering from a mental disorder if a defect in the review of a previous admission or renewal order could invalidate a subsequent renewal order based on a separate and contemporaneous uncontroverted finding that the person concerned is suffering from a mental disorder. 87. The second argument the applicant relies on in seeking to maintain a challenge to the validity of the renewal order made on the 16th May 2014 is that the inadequacy alleged in the reasons provided by the Tribunal must be viewed as constituting such a default of fundamental requirements that the detention may be said to be wanting in due process of law. Of course, I have held that there has been no failure to provide adequate reasons for the tribunal’s decision to affirm the admission order in respect of the applicant, but even if I had found the reasons provided to be in some way deficient, it is difficult to see how any such deficiency could be properly characterised as a default of fundamental requirements. If the allegation that the appellant in E.H. had been unlawfully detained for a number of days prior to his detention under s. 24 of the 2001 Act could be characterised, as it was by the Supreme Court in that case as “a purely technical and unmeritorious ground”, it is difficult, if not impossible, to imagine how an asserted deficiency in the reasons given by the tribunal for affirming an admission order could be said to amount to “a default of fundamental requirements.” This is not, for example, a case in which there was a failure or refusal to convene a tribunal to review the applicant’s detention, nor is it even a case in which a decision to affirm a detention order has been made for which no reasons have been provided. 88. For all of the reasons set out above, I am satisfied that the inadequacy that the applicant contends for in the reasons provided by the tribunal could not, even if it were accepted, render unlawful the detention of the applicant on foot of the renewal order made in respect of the applicant on the 16th May 2014. Indeed, I had formed the impression - perhaps incorrectly - that this point was conceded on behalf of the applicant in the course of argument, and that the only remaining point of disagreement between the parties was, rather, whether the applicant was entitled to maintain her challenge to the validity of the tribunal’s decision (notwithstanding the legality of her subsequent detention) or whether that challenge should be dismissed as moot. For the sake of completeness, I propose to address that argument also. Mootness
… The practice of the courts in declining, in principle, to decide moot cases arose at common law, although various jurisdictions have statutory or constitutional provisions about it. (see 88 Harvard Law Review 373 at 374 (1974)). In De Roiste v. Minister for Defence [2001] 1 IR 190; [2001] 2 ILRM 241 Denham J. said at pp. 204/254-255: ‘Judicial review is an important legal remedy, developed to review decision making in the public law domain. As the arena of public law decision making has expanded so too has the volume of judicial review. It is a great remedy modernised by the Rules of the Superior Courts 1986, and by precedent. However, there is no absolute right to its use, and there are limitations to its application. The granting of leave to apply for judicial review and the determination to grant judicial review are discretionary decisions for the Court. This has been set out clearly in precedent.’” Conclusion |
