Supreme Court of Ireland Decisions

1. This appeal concerns an enquiry pursuant to the provisions of Article 40 of the Constitution into the legality of the detention of the Appellant at St. Otteran’s Psychiatric Hospital in Waterford.

2. The Applicant was born in Huddersfield, England, on 1st May 1966. His ethnic background is Afro-Caribbean. He states in an affidavit sown on 13th June 2000 that he moved with his parents to Canada at the age of nine and lived there for some twenty five years, a period which would cover his entire lifetime. However it appears from his medical

3. It is not entirely clear when the Appellant began to reside in Waterford, but he appears to have taken up residence there by June 1999. In April 2000 he was residing in Bolton House, which is described as “The Independent Protestant Hostel”; the administrator of this hostel is a Baptist Minister. By religion the Appellant is a Jehovah’s Witness. Arising out of an incident in Bolton House, the Appellant was on 16th April 2000 brought by members of the Garda Siochana to the Department of psychiatry, Waterford Regional Hospital. He had been examined by a local general practitioner Dr. Power, and he was admitted as a temporary chargeable patient under Section 184 of the Mental Treatment Act 1945. He was diagnosed as suffering from a major mental illness, most probably disorganised schizophrenia. He was examined and treated by Dr. Noel Sheppard, Consultant Psychiatrist. Due to increasingly disturbed behaviour he was subsequently transferred to St. Otteran’s Hospital and came under the care of Dr. Derek O’Sullivan, Consultant Psychiatrist.

4. On 13th June 2000 the Appellant applied to the High Court for an enquiry under Article 40 of the Constitution into the legality of his detention. The matter came on for hearing before Herbert J. and on 16th June 2000 Herbert J. made an order adjudging that his detention was not in accordance with law and directing his release. It appears from the pleadings in that application, which are exhibited with the Appellant’s affidavit in the present proceedings, that the reason for his release by the High Court was that the statutory form necessary for his reception as a temporary chargeable patient under Section 184 was manifestly defective and incomplete and that the proper procedures had not been carried out prior to his reception in the hospital. The Applicant remained living at liberty in Waterford until the 9th November 2000. On that date he was arrested by the Garda Siochana arising out of an incident of alleged assault. The subsequent events are summarised by Kelly J. in his judgment of 14th December 2000 as follows:-

5. It was clearly the view of Dr. O’Sullivan and the hospital authorities that the Applicant was not medically fit to be discharged from the hospital. Dr. O’Sullivan had found him to have a very elaborate delusional system with paranoid and persecutory components. The hospital authorities requested an assessment of the Applicant with a view to having him admitted to the hospital as a temporary chargeable patient under Section 184 of the 1945 Act.

6. On 15th November 2000 the local Superintendent Community Welfare Officer Mr. Bernard Tyers and Dr. Power, General Practitioner jointly assessed the Appellant. Following that assessment parts 1 and 2 of the statutory form under Section 184 of the 1945 Act was completed by them. Dr. O’Sullivan saw the Appellant on 16th November 2000 before the seventy two hour notice which he had given for his discharge from hospital had expired. Dr. O’Sullivan diagnosed him as continuing to be ill and requiring treatment and completed Part 3 of the statutory form, admitting him as a temporary chargeable patient. In his affidavit sworn the 4th December 2000 Dr. O’Sullivan then states that he informed the Appellant of his rights and gave him a leaflet. He goes on to state that a second opinion was requested from one of his consultant colleagues, Dr. Sheppard, and it was arranged for the Appellant to be facilitated in contacting his solicitor. The Appellant has remained in St. Otteran’s Hospital since that date. In his affidavit sworn the 4th December 2000 Dr. O’Sullivan avers that the Appellant is still seriously ill and in need of continuing treatment.

7. On 30th November 2000 the Appellant again applied ex parte for an enquiry pursuant to Article 40 of the Constitution into the legality of his detention. On that date Kelly J. made a conditional order directing the Medical Superintendent of St. Otteran’s Hospital to produce the Appellant before the Court and to certify in writing the grounds of his detention. On 5th December 2000 Kelly J. carried out the enquiry under the Constitution. He delivered his reserved judgment on the 14th December 2000 and made an order declaring that the Applicant was detained in accordance with the law and refusing his release.

8. From that judgment and order the Appellant/Applicant has appealed to this Court. The grounds of his appeal are as follows:

9. At this point I should say that I have no doubt that the authorities in St. Otteran’s Hospital, and in particular Dr. O’Sullivan, acted as they did in what they saw as the best interests of the Appellant. It also appears clear from the medical evidence that the Appellant remains quite seriously ill and that his prognosis if he is released without further treatment is not good. However the matter before this Court is an enquiry under Article 40 of the Constitution and accordingly the sole issue which falls to be decided is whether the Appellant’s detention is in accordance with law. This was made clear by the learned Chief Justice (Finlay C.J.) in his judgment on behalf of a full Court in In Re D. [1987] IR 459 at 457: -

10. The interpretation of a number of sections both of the Mental Treatment Act 1945 (as amended) and of the Mental Treatment Act 1953 forms the core of the issues in these proceedings. The first relevant section is Section 194 of the Mental Treatment Act 1945 which is found in Part XV of the Act entitled “Voluntary Patients”. Section 194 in so far as it is relevant provides as follows:-

11. It was submitted in argument before this court that Section 195 was also relevant. That section provides as follows:-

12. The Appellant has been detained in St Otteran’s Hospital pursuant to a Reception Order purporting to have been made under Section 184 of the Mental Treatment Act 1945 (as amended). Section 184 forms part of Chapter 3 of Part XIV of the Act. Part XIV deals in general with Reception Orders and Chapter 3 is entitled “Temporary Chargeable Patient Reception Orders and Temporary Private Patient Reception Orders”. Section 184 (as amended) of the Act insofar as it is relevant provides as follows:

13. Certain provisions of Section 5 of the Mental Treatment Act 1953 are also in issue. That section in so far as it is relevant provides:

14. In his judgment the learned High Court judge set out the relevant facts and statutory provisions. The first issue that arose was whether a voluntary patient in a mental hospital who had given the seventy two hour notice of his discharge required by Section 194 of the 1945 Act had an absolute right to be discharged and physically released from the hospital at or before the expiry of the seventy two hour notice period. Kelly J. considered that in providing for the seventy two hour period of notice the Oireachtas “must have had in mind that in an appropriate case the hospital authorities might during that period avail themselves of other statutory provisions so as to ensure that a mentally sick person would not be free to leave hospital thereby placing his welfare or perhaps even his life at risk.”

15. He rejected the proposition that in all cases where a notice was given under Section 194 of the Act there was a mandatory entitlement on the part of the patient to leave the institution at the expiration of the seventy two hour period.

16. With regard to the interpretation of Section 184 of the 1945 Act, which provides that a patient is to be “received and detained” Kelly J. held that the section should be interpreted in a purposive fashion and that a voluntary patient could, while in the custody of the hospital, be the subject of Section 184 detention.

17. The learned High Court judge also held that there had not been a failure to comply with the provisions of Section 5(3)(a) of the Mental Treatment Act 1953. The provisions of Section 5(3)(a) only applied in circumstances where it was proposed to exercise the power to “take and convey” the person concerned as set out in Section 5(1)(a) of the Act. Since that did not apply in the case of the Appellant, the provisions of Section 5(3)(a) did not apply to him. The learned judge noted that despite this a second opinion had been given and the Appellant had been given a leaflet setting out his rights. Kelly J. therefore took the view that the Appellant had not made out a case that his detention was unlawful and consequently he refused his application for release.

18. The submissions of Mr Counihan, Senior Counsel for the Appellant, fell under three headings. He argued that the detention of the Appellant was unlawful in that (i) the Respondent failed to release him in accordance with Section 194 of the 1945 Mental Treatment Act, (ii) the procedure for admission as an involuntary patient under Section 184 of the 1945 Mental Treatment Act did not apply to persons already admitted as voluntary patients, and (iii) that the procedure adopted by the Respondent was not in accordance with the mandatory provisions of Section 5 of the 1953 Mental Treatment Act 1953. Finally Mr Counihan argued that the Court should have regard to the provisions of the European Convention on Human Rights on the deprivation of liberty.

19. As regards the first issue Mr Counihan submitted that the wording of Section 194 was clear and unambiguous. Where the meaning of a statute was clear and unambiguous it should be interpreted literally. He referred to the judgment of Denham J. in this Court in DPP (Ivers) v Murphy [1999] 1 ILRM 46 at page 60 :-

20. Mr Counihan argued that a voluntary patient who had given notice pursuant to Section 194 could not during the period of notice be subjected to the Section 184 procedure in order to keep him in hospital. The detention of Mr Gooden in St. Otteran’s Hospital was plainly in breach of Section 194.

21. With regard to the procedure under Section 184 used by the Respondents to detain the Appellant in St. Otteran’s Hospital, Mr Counihan submitted that the use of the section was a strategy to ensure his continuing detention. He referred to the statutory form which had been completed in regard to Mr Gooden. He submitted that Mr Bernard Tyers, the Superintendent Community Welfare Officer, had no involvement in the case and was merely acting as a rubber stamp. He had clearly been brought in by the authorities in St. Otteran’s Hospital solely for the purpose of completing the form. There was no evidence to support the Section 184 application and the situation was not one of emergency. No emergency situation had been pleaded by the Respondents.

22. Mr Counihan also referred to the leaflet which was given to Mr Gooden and which was exhibited with Dr. O’Sullivan’s affidavit. He pointed out that this leaflet did not clearly indicate to the Appellant that he had a right to seek a second opinion. The main reference to the patient’s rights was contained in a short paragraph which stated:-

23. This paragraph was in the first place far from clear and in the second place left the patient solely dependent on the advice of the doctor as regards his rights.

24. Mr Counihan also stressed the importance of the constitutional right to liberty and referred to the dictum of Costello P. in R.T. v Director Central Mental Hospital [1995] 2 IR 65 at page 79 where the learned President stated:

25. This dictum was specifically approved by this Court in Croke v Smith (No.2) [1998] 1 IR 101 at 118.

26. Mr Counihan also drew attention to Article 5.1 of the European Convention on Human Rights:-

27. Mr Counihan submitted that the Appellant in the present case had not been detained in accordance with a procedure prescribed by law.

28. Finally Mr Counihan submitted that the Court could not be concerned with the objective welfare of the Appellant. This was an application under Article 40 of the Constitution and the sole issue was whether the Applicant was detained in accordance with law.

29. Senior Counsel for the Respondents. Mr. McEnroy, argued that Mr Counihan’s submissions in regard to Section 194 of the 1944 Act were entirely dependent on taking Section 194 as a section standing on its own. On the contrary the section formed part of that Part of that Act which dealt with voluntary patients and should be read in its context. In particular it should be read in the context of Section 195, which provided that where a person who has been treated in an approved institution as a voluntary patient becomes mentally incapable of expressing himself as willing or not willing to remain in the institution, he shall be discharged from the institution into the custody of such person as the person in charge of the institution approves of not later than 28 days after becoming so incapable unless he sooner becomes capable of expressing himself as aforesaid or a Reception Order relating to him is obtained. Mr McEnroy submitted that Section 195 clearly envisaged a situation in which a Reception Order whether under Section 184 or under another section could be made in relation to a voluntary patient who was still in the hospital. He argued that the seventy two hour notice period where discharge was sought under Section 194 was provided precisely in order to allow the hospital authorities to take appropriate action if they felt that on account of his illness the patient was not fit to be discharged. This was the course that had been taken by Dr. O’Sullivan and the authorities of St. Otteran’s.

30. With regard to the argument that Mr Bernard Tyers was a mere “rubber stamp” and had no connection with the patient, Mr McEnroy raised the query as to who was to sign the statutory form under Section 184. This was clearly set out in sub-section (2) of Section 184. The primary persons required to make an application - the husband, wife, relative, or assistance officer at the request of a relative simply did not exist in the instant case and that was made clear by Mr Tyers in filling in the form. At paragraph 7(b) of the form dated 15th November 2000 on foot of which the Appellant was detained as a temporary patient (chargeable) Mr Tyers had stated. “My connection with the said person is I am Superintendent Community Welfare Officer for the Waterford Community Care Area and the circumstances in which I am making the application are the patient has no blood relative available to do so.” Given that it was envisaged at 7(a) of the statutory form that an Assistance Officer could have a role in completing the form it was quite appropriate that Mr Tyers should have fulfilled the role in this case since the present post of Community Welfare Officer was the modern equivalent of an Assistance Officer in 1945.

31. The Appellant in this case had been assessed by a General Practitioner Dr. Moore and had subsequently been examined by Dr. O’Sullivan who was a Consultant Psychiatrist. Mr McEnroy acknowledged that the second opinion given by Dr. Sheppard was not the type of second opinion envisaged in Section 5(3) of the 1953 Act. It had taken place at the wrong point in the process. That was not to say that it was entirely without value.

32. Mr McEnroy submitted that the learned High Court Judge was entirely correct in holding that the provisions of Section 5(3)(a) only came into effect where it was proposed to exercise the powers conferred by Section 5(1)(a) - to take and convey the person concerned to the institution. Since this did not arise in the case of the Appellant, neither did Section 5(3)(a) apply to the Appellant.

33. As far as the rights of the Appellant were concerned, Mr McEnroy submitted that the Appellant had an important right to health as well as a right to liberty. His right to health might well be damaged if his right to liberty was vindicated by his being discharged from St. Otteran’s Hospital when he was clearly seriously ill. No medical evidence had been produced to contradict the medical evidence of his illness provided by the Respondents. Mr McEnroy referred to Re: Philip Clarke [1950] IR 253 where the previous Supreme Court had held that the 1945 Act “was 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” (at page 247). Mr McEnroy submitted that this central purpose of the Act should be borne in mind when approaching any questions of interpretation.

34. The first issue which arises is the interpretation of Section 194 of the Mental Treatment Act 1945. Counsel for the Appellant submits that the learned High Court judge erred in interpreting this section in a purposive manner and contends that since the wording of the section is clear and unambiguous it should be interpreted literally. The rules of interpretation were fully considered by Denham J. in her judgment in this Court in DPP (Ivers) v Murphy [1999] 1 ILRM 46 (at page 58 onwards). Counsel for the Appellant himself referred to an aspect of this case in his argument. However I think that it is useful to consider the passage as a whole. Under the heading “Rules of Interpretation” Denham J. stated:

35. I respectfully accept Denham J’s analysis of the principles of interpretation as set out in that judgment. In interpreting Section 194, therefore, it would in my view be right to consider the purpose of the 1945 Act as a whole. It is a wide ranging Statute, dealing with all aspects of provision of treatment for those suffering from mental illness, ranging from the building of mental hospitals to details of their administration and staffing and to the reception and care of patients. It is divided into distinct but related Parts. Section 194 occurs in that part of the Act which deals with voluntary patients in mental hospitals. It cannot, however, be read entirely in isolation from those parts of the Act which deal with patients who had been committed to mental hospitals as a result of Reception Orders. Still less should be read in isolation from the surrounding sections in the same part, and in particular Section 195.

36. At first reading the wording of Section 194 appears clear and unambiguous. If, however, it is interpreted literally as providing an absolute right to physical release from the hospital and as preventing any use of the machinery of Section 184 or the making of a Reception Order while the patient is still in the hospital the logical result is that the only person for whom a Reception Order cannot in any circumstances be made is a voluntary patient who has given notice of discharge. During the seventy two hour period of notice he is inviolate and at the end of it he must be physically released. This situation would apply even if the patient in question was so mentally ill as to be a danger either to himself or to the public. That this is the effect of a literal interpretation of Section 194 is candidly admitted by Mr. Counihan.

37. This passage has been generally accepted as expressing the nature and purpose of the 1945 Act. The Act provides for the detention of persons who are mentally ill both for their own sake and for the sake of the common good.

38. The Appellant was a voluntary patient in St. Otteran’s Hospital who gave notice that he wished to discharge himself. The unchallenged medical evidence establishes that he was still seriously ill and suggests that he was not fit for discharge and for living independently in the community. It seems likely that situations similar to that of the Appellant must not infrequently arise in the experience of mental hospitals. It is hardly likely that the Oireachtas intended that these patients, and these patients alone, should be discharged into the community, possibly without treatment, when other persons exhibiting the same degree of illness can be protected by being received into a hospital and there have their illness treated. It may be of significance, although this was not raised in argument before this Court, that the voluntary patient may not be released prior to the expiration of the notice period; he is to be allowed to leave “on or at any time after” its expiry (my emphasis).

39. In addition, I would accept the validity of Mr McEnroy’s submission that Section 194 should be interpreted in the light of Section 195. Section 195 envisages a situation where a voluntary patient is so ill that he or she is unable to continue to make the voluntary decision either to remain in hospital or to seek discharge. The section envisages any one of three outcomes to such a situation. If after a period of a maximum of 28 days the person remains unable to express willingness or unwillingness to remain he should be discharged to an approved person. However, within the 28 days the patient may recover sufficiently to make his own decision. The third possibility is set out in the final part of the section -

40. This must imply that if the patient concerned is too ill to be discharged at the end of the 28 day period the hospital may, without discharging him , set in train the machinery for obtaining a Reception Order.

41. If this is permissible in a situation where Section 195 applies, it seems to me that it is also permissible in a situation under Section 194 where a patient seeks discharge but is sufficiently seriously ill to render discharge likely to be harmful. As far as this issue is concerned, therefore, I would uphold the decision of the learned High Court judge.

42. I would also reject the submission of the Applicant that the procedure under Section 184 of the Act by which the Reception Order was made was incorrect in that Mr Bernard Tyers, Senior Community Welfare Officer, was not a proper person to make the application for a Reception Order. It is, of course, true that Mr Tyers is not a relative of the Applicant; nor is he acting on the request of a relative. However, it is clear firstly that the Appellant is not a native of Waterford and has no relatives in the area, and secondly that in the terms of Section 184(2)(c) the application may be made by “any other person” . Mr Tyers fulfils the requirements of Section 184(3). He is a senior official of the South Eastern Health Board. In my view he is a perfectly proper person to make the application in the circumstances of the case.

43. I now turn to the submission made by counsel for the Applicant that the procedure adopted by the Respondent was not in accordance with the mandatory provisions of Section 5(3) of the Mental Treatment Act 1953. The Appellant’s case is that in all cases where an application for a Reception Order for a chargeable patient is made the person in respect of whom the application is made must, before the Reception Order is made, be told that he may request a second medical opinion and may obtain that opinion.

44. Mr McEnroy, however, argues that Kelly J. was correct in his decision that Section 5(3) did not apply at all, since it was governed by Section 5(1) and applied only when the person concerned was taken and conveyed to the relevant institution.

45. The right to request a second opinion and the necessity to be informed of such a right are extremely important protections in the case of a person who is facing involuntary detention in a mental hospital. It should be noted that where application is made under Section 185 for a temporary Reception Order in respect of a private patient, the opinion of two general practitioners is automatically required. This is one of a number of differences or discriminations made in the Act between public, or “chargeable”, patients and those who can afford to pay for their own psychiatric care. This in my view is one of the undesirable features of this legislation which has now been in existence for over fifty five years.

46. I would therefore consider it highly desirable that all chargeable patients should benefit from the right to a second opinion as provided in Section 5(3). There seems little justification for limiting this right to persons who are to be physically removed to “the institution in which it is desired to have him received and detained”. Presumably the right to a second opinion was provided by the Oireachtas in order to protect persons from being committed to a mental hospital without proper medical justification by relatives or other persons who bear them ill-will or simply want to get them out of the way. It is, I suppose, arguable that where a person is, like the Appellant, already a patient in a mental hospital when the application for a Reception Order is made, his rights will be promoted and protected by the doctors and other staff who are already caring for him. In the present case, for instance, Dr. O’Sullivan endeavoured to fulfil this function by seeking a second opinion from Dr. Sheppard and by giving the (somewhat inadequate) leaflet of rights to Mr Gooden.

47. I remain personally convinced that all persons in respect of whom a Reception Order is sought should have a clear right to an independent second opinion. I am, however, faced with the plain words of the section:

48. The power conferred by paragraph (a) is the power to “take the person to whom the application relates and convey him to the institution in which it is decided to have him received and detained” . The word “convey”, unlike the words “receive” and “detain” in Section 184 of the 1945 Act, definitely implies movement from another place to the institution in question. The primary meanings of “convey” given by the Oxford English Dictionary are “transport” and “carry” . It is in my view impossible to avoid the conclusion that the intention of the Oireachtas was that the right to a second opinion applies only where a person is being brought from elsewhere to a mental institution. With some reluctance, therefore, I accept that in the circumstances of this case the rights provided in Section 5(3)(a)(i) do not apply to the Appellant.

49. Mr Counihan also referred to Article 5.1 of the European Convention on Human Rights. Article 5.1 provides:

50. Among the cases listed are “(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”.

51. It appears that this provision would envisage that proper legal procedures for the detention of persons of unsound mind do not infringe the protections of the Convention. In any event it has been made clear repeatedly by the High Court and by this court that the European Convention on Human Rights does not (at least to the present) form part of Irish domestic law. The provisions of the Convention may be helpful in considering unspecified personal rights which arise under the Constitution of Ireland (see Doyle v Commissioner of an Garda Siochana [1999] 1 IR 249; judgment of Barrington J. at Pg. 268 . In the case of the Appellant it does not seem to me that the provisions of Article 5.1 add anything to the Appellant’s right to liberty as it arises under Article 40 of Bunreacht na hÉireann. I would therefore dismiss the appeal and uphold the judgment and order of the High Court.

52. At the conclusion of this judgment the learned High Court judge drew attention to the need for legislative reform. He stated:-

53. In addition I would point out that the facts in the instant case illustrate further weaknesses in the current legislation. As I have noted earlier in this judgment the situation where a Reception Order is required for a voluntary patient who has, contrary to his own medical interests, given notice of discharge from hospital must occur relatively frequently. No express provision is made in the Act of 1945 for this situation. It has been necessary for this court to imply such a provision. This is not a satisfactory situation.

54. It has also become clear that the crucial protection of a right to an independent second opinion does not extend to all “chargeable” or public patients, while two opinions are automatically required for all private patients. This is one of a number of unnecessary and invidious differences between the treatment of public and private patients which arise under the Act. Again this situation is far from satisfactory.

55. There is now, however, some hope of reform on the horizon. The Mental Health Bill 1999 was initiated by the Minister for Health and Children on the 10th December 1999 and is proceeding through its various stages in the Oireachtas. It has, it appears, been considered and amended by the Select Committee on Health and Children which completed its work on the Bill by 25th October 2000.

56. A reading of this proposed legislation shows that it provides for very considerable reform of the law regarding the detention of persons suffering from mental illness, and would include the repeal of virtually the whole of the 1945 Act. It also envisages the repeal of the 1981 Act which was, of course, never brought into effect.

57. This is not the place to comment on the proposed reforms contained in the Mental Health Bill 1999, neither would it be proper for this Court to do so in any way. I might, however, be permitted to note that Sections 22 and 23 of the 1999 Bill deal with precisely the problem arising under Sections 194 and 195 of the 1945 Act which has been an issue in the present appeal.

58. It is to be hoped that there will be no unnecessary delay in completing the enactment of the proposed legislation; and, still more importantly, that once it is enacted it will be brought into effect.

59. I agree with the judgment of Mrs. Justice McGuinness in this case. Specifically, I strongly agree with what she has said about the need for statutory initiatives in this area and her hope that legislation now in train will significantly clarify and improve the position of all parties involved in the mental treatment area.

60. I wish to add a few words of my own about the techniques of construction the Court has applied in this case.

61. At the end of her judgment, McGuinness J. has said:-

62. There is no doubt that the medical and Social Welfare authorities involved in this case have acted constructively and benevolently both in the interests of the Applicant and in the wider public interest. It is most unfortunate that the validation of these actions in law has involved complex debate about the interpretation of the statutory provisions concerned. Furthermore, it has involved the application to those provisions of the sophisticated techniques of construction described in the judgment of the learned McGuinness J. and illustrated by cases such as River Wear Commissions v. Adamson [1877] 2 App Cas 743, Nestor v. Murphy [1979] IR 326, Pepper v. Hart [1993] 1 AER 432 and DPP (Ivers) v. Murphy [1999] 1 ILRM 46.

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

64. I believe that these techniques and their varied applications are justified in this case on the principle stated by Lord Griffiths in Pepper v. Hart , as follows:-

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