THE SUPREME COURT
[Appeal No. S:AP:IE:2018:000090]
Clarke C.J.
McKechnie J.
MacMenamin J.
Dunne J.
Finlay Geoghegan J.
BETWEEN
I.F.
APPLICANT/RESPONDENT
AND
THE MENTAL HEALTH TRIBUNAL AND THE MENTAL HEALTH COMMISSION, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
AND
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
NOTICE PARTY
Judgment of Ms. Justice Dunne delivered the 29th day of May 2019
1. These proceedings arose out of an application for judicial review of a decision of the Circuit Court which declined to hear an appeal pursuant to s. 19 of the Mental Health Act 2001. In the Circuit Court, Groarke P. had ruled that the appeal was moot as the admission order was spent and the relevant order under which the Applicant was then held was a renewal order, which was the subject of an appeal to the Mental Health Tribunal. In the High Court, an order of certiorari of the decision of the Circuit Court was refused. The High Court judge (Barrett J.) relied on what he understood to be a consistent view of the operation of the 2001 Act, that an admission order was replaced by a renewal order and that s. 19(1) of the 2001 Act confined the jurisdiction of the Circuit Court to hear appeals where the patient "is suffering" from a mental disorder at the time of the appeal and that it did not have jurisdiction to consider the correctness of the original decision of the Mental Health Tribunal in relation to an admission order where it had expired.
2. The Court of Appeal allowed the appeal. Hogan J. in his judgment concluded that s.19(1) of the 2001 Act must be read as if the words "… on the grounds that he or she is not suffering from a mental disorder" were "… on the grounds that he or she is or was suffering from a mental disorder". The Court of Appeal also determined that the basis for the detention of the applicant at all times remains the original admission order and that a renewal order merely prolongs or extends the validity of the admission order. It is from that decision that the Mental Health Commission seeks to appeal.
3. It is important to ensure that a person who is involuntarily detained by reason of mental illness is able to avail of a legal mechanism to confirm that the procedures leading to their detention have been carried out appropriately and that the continued detention of the person concerned is subject to scrutiny. The provisions of the Mental Health Act 2001 are designed to provide the necessary safeguards. (The 2001 Act was subsequently amended but this judgment is focused on the 2001 Act as it was prior to the amendments brought about by the Mental Health (Renewal Orders) Act 2018. All references in this judgment are to the 2001 Act as it was before the amendments. The 2018 Act makes changes to Sections 15, 16, 17 and 18 of the 2001 Act and also makes provision for "replacement renewal orders" and alters the time periods for which orders can be made and grants additional rights of review. However, these amendments are of no material consequence in the context of the issues to be decided in this case.) Thus, where a patient has been detained pursuant to the provisions of the 2001 Act, the order by which the patient is detained, be it an admission order or renewal order, is referred to a Mental Health Tribunal to review the detention of the patient concerned (see s. 18 of the 2001 Act). If the Mental Health Tribunal is satisfied that the patient is suffering from a mental disorder and that certain provisions of the 2001 Act have been complied with, the Mental Health Tribunal affirms the order. The phrase "mental disorder" is defined in s. 3 of the 2001 Act as follows:
"3 - (1) In this Act "mental disorder" means mental illness, severe dementia or significant intellectual disability where -
(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 to 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
(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent."
4. Section 3(2) goes on to give definitions of "mental illness", "severe dementia" and "significant intellectual disability".
5. It would be useful to refer to a number of other provisions of the Act at this stage. Section 15 provides:
"15(1) - An admission order shall authorise the reception, detention and treatment of the patient concerned and shall remain in force for a period of 21 days from the date of the making of the order and, subject to subsection (2) and section 18(4), shall then expire.
(2) The period referred to in subsection(1) may be extended by order (to be known as and in this Act referred to as "a renewal order") made by the consultant psychiatrist responsible for the care and treatment of the patient concerned for a further period not exceeding 3 months.
(3) . . .
(4) The period referred to in subsection(1) shall not be extended under subsection(2) or (3) unless the consultant psychiatrist concerned has not more than one week before the making of the order concerned examined the patient concerned and certified in a form specified by the Commission that the patient continues to suffer from a mental disorder."
6. Sections 17 and 18 of the Act provide for a review of an admission order or a renewal order by a Tribunal.
7. An appeal from a decision of the Tribunal is provided for in s. 19 of the 2001 Act which states as follows:
"19(1) A patient may appeal to the Circuit Court against a decision of a tribunal to affirm an order made in respect of him or her on the grounds that he or she is not suffering from a mental disorder.
(2) An appeal under this section shall be brought by the patient by notice in writing within 14 days of the receipt by him or her or by his or her legal representative of notice under section 18 of the decision concerned.
(3) . . .
(4) On appeal to it under subsection (1), the Circuit Court shall -
8. Finally, it may be of assistance to refer to the provisions of s. 28 of the 2001 Act which provides for the discharge of patients where the consultant psychiatrist responsible for the care and treatment of the patient becomes of the opinion that the patient is no longer suffering from a mental disorder and can revoke the relevant admission order or renewal order and discharge the patient. Section 28(5) goes on to provide as follows: "Where a patient is discharged under this section -
(a) if a review under section 18 has then commenced, it shall be discontinued unless the patient requests by notice in writing addressed to the Commission within 14 days of his or her discharge that it be completed, or
(b) if such a review has not then commenced, it shall not be held unless the patient indicates by notice in writing addressed to the Commission within 14 days of his or her discharge that he or she wishes such a review to be held,
and, if he or she requests that a review under section 18 be completed or held, as the case may be, the provisions of sections 17 to 19 shall apply in relation to the review with any necessary modifications."
9. The Applicant/Respondent herein (Ms. F.) was the subject of an admission order made on the 7th October, 2015. Unfortunately, Ms. F. is a lady who has a long history of mental illness. I gratefully adopt the background to this matter set out in the judgment of Hogan J., as follows: "4. …It appears that on the 6th October 2015 an application in respect of Ms. F. was made by a member of An Garda Síochana pursuant to the provisions of s. 12 of the 2001 Act. Ms. F. had come to Garda attention following an allegation that she had threatened her neighbours with a butcher's knife. A recommendation was made by a general practitioner pursuant to s. 10 of the 2001 Act for an involuntary admission and Ms. F. was then brought to an approved centre.
5. An admission order was then made by a consultant psychiatrist on the morning of the following day, the 7th October 2015, pursuant to the provisions of s. 14 of the 2001 Act. That admission order was due to expire on the 28th October 2015.
6. On the 27th October 2015 that admission order was affirmed by the Mental Health Tribunal pursuant to s. 18(1)(a) of the 2001 Act. Ms. F. instructed her solicitor to lodge an appeal to the Circuit Court against that decision and such an appeal pursuant to s. 19 of the 2001 Act was lodged on the following day. The earliest available return date for the hearing of the appeal was the 9th November 2015, but due to another professional commitment on the part of Ms. F.'s solicitor on that day, it was agreed that the appeal would be heard on the following day, the 10th November 2015.
7. In the meantime a renewal order had been made on the 27th October 2015 pursuant to s. 15(2) of the 2001 Act extending the period of involuntary detention to the 27th December 2015. This decision had been made within a short period of the affirmation of the admission order by the Tribunal following an examination of Ms. F. by the consultant psychiatrist responsible for the making of the initial admission order."
10. On the 10th November, 2015, the Circuit Court declined to hear the appeal against the admission order given that at the time of the appeal, the admission order had expired. The ruling of the President of the Circuit Court is set out in the judgment of Hogan J. and it was stated by Groarke P. in the course of the ruling: "I am not going to make any order in respect of an order which is spent. . . . Were I to hear this appeal I would be hearing or carrying out an assessment of the mental health of the appellant today, but whatever I determine in that regard is moot . . ."
11. Subsequently, the renewal order was considered by a second Mental Health Tribunal (on the 16th November, 2015). That order was the subject of an appeal to the Circuit Court and on the 15th December, 2015 the Circuit Court heard the appeal against the decision of the Mental Health Tribunal of the 16th November, 2015, affirming the renewal order and the Circuit Court in its turn affirmed the first renewal order made on the 27th October, 2015.
12. Ms. F. then commenced judicial review proceedings seeking, inter alia , an order of certiorari quashing the order of the Dublin Circuit Court of the 10th November, 2015 and seeking a number of other reliefs, including the following:
"If, which is denied, the Circuit Court was entitled to have regard to the fact that the admission order had been extended by a renewal order and to hold that the Applicant's appeal was moot, a declaration that s. 19 of the Mental Health Act 2001 is invalid having regard to the provisions of the Constitution of Ireland 1937."
Ms. F. also sought a declaration of incompatibility in respect of s. 19 of the 2001 Act with the European Convention on Human Rights in the circumstances outlined above.
13. The High Court in a written judgment (delivered by Barrett J.) on the 8th November, 2016 declined to grant any of the reliefs sought by Ms. F. and Ms. F. then appealed to the Court of Appeal. That Court allowed the appeal of Ms. F. in a judgment of Hogan J. delivered herein on the 18th April, 2018 and there was also a short concurring judgment of Peart J.
14. Following the decision of the Court of Appeal, the Mental Health Commission sought leave of this Court to appeal and leave was granted to appeal the decision on the grounds set out in the application for leave.
Judgments of the High Court and the Court of Appeal
15. The High Court in its judgment (Barrett J.) stated at paragraph 11:
"Ms F ( sic ) contends that there was no reason why the Circuit Court could not have made a determination as to whether or not Ms F ( sic ) was suffering from a mental disorder on 10th November, the date on which the hearing was held. The court does not agree. Her appeal against the admission order (Order A) had become moot because that order had been supplanted by the renewal order (Order B). Thus the Circuit Court could neither affirm nor revoke Order A and, as a mental health tribunal had yet to affirm or revoke Order B, it would have been premature for the Circuit Court to make a finding concerning that order."
He went on to reject the contention that s. 19 of the 2001 Act is unconstitutional on the basis that: ". . . even if the Act of 2001 did not provide an appeal mechanism in respect of mental health tribunal decisions concerning admission orders, this would not render s.19 invalid."
He also rejected the contention that s. 19 contravened the European Convention on Human Rights.
16. The principal judgment of the Court of Appeal was delivered by Hogan J. and a concurring judgment was delivered by Peart J. Gilligan J. concurred with both judgments. In the course of his judgment, Hogan J. considered at length a decision of the High Court in the case of Han. v. President of the Circuit Court [2011] 1 IR 504. In that case, the interpretation of s. 19 of the 2001 Act was the central issue. Charleton J. in that case concluded that the use of the language and in particular the present tense in s. 19 of the 2001 Act was to allow "…those patients who are still detained, following on a hearing before the Mental Health Tribunal, to have the condition of their mental health reviewed before a judge of the Circuit Court. It is not to engage in a historical analysis". Having considered at length that judgment, Hogan J. came to a different conclusion stating as follows at paragraph 47 onwards:
"47. First, as a matter of stare decisis both Groarke P. and Barrett J. were correct to follow and apply the applicable law and understanding of the scope of s. 19 of the 2001 Act as reflected in the judgment of Charleton J. in Han ., namely, that the right of appeal applied only where the person in question 'is' suffering from a mental illness.
48. Second, I consider, however, that in Han . Charleton J. was, with respect, incorrect in applying a purely literal interpretation of s. 19(1) of the 2001 Act, because this interpretation effectively rendered s. 28(5) unworkable. In these circumstances, irrespective of whether one applies the maxim generalia specialibus non derogant or the interpretative principles contained in s. 5(1) of the 2005 Act, it is clear that a purely literal interpretation of the sub-section is not appropriate.
49. Third, it follows that s. 19(1) of the 2001 Act must therefore be read as if it read 'is or was' suffering from a mental disorder. This means in turn that the Circuit Court is not confined on a s. 19 appeal to determining whether the appellant is suffering from a mental illness at the exact time of the hearing of the appeal, but this jurisdiction also extends to determining whether she was suffering from this illness at the time of the Tribunal decision from which the s. 19 appeal has been taken. This modified interpretation of s. 19(1) is necessary so that s. 28(5) can have real meaning and effect.
50. Fourth, this has the further consequence for the present case that the Circuit Court has a jurisdiction to hear an appeal against the affirmation of an admission order by a Tribunal under s. 18(1), even if that admission order has been subsequently replaced by a renewal order. The Circuit Court can accordingly determine whether the Tribunal was correct to affirm that original order.
51. Fifth, there remains the difficult question as to what would happen to the intervening renewal order in the event that the Circuit Court was to allow the appeal from the original admission order. While there is no perfectly satisfactory solution to the conundrums thrown up by this appeal, I do not think that the Circuit Court could address the merits of any subsequent order in the course of such a s. 19 appeal (including, if necessary, setting aside that order). Any such subsequent renewal order would have to be considered by a Tribunal under s. 18(1), with the further right of appeal under s. 19(1). All that this Court is, however, now deciding is that the Circuit Court has jurisdiction to hear and determine the original appeal under s. 19(1), even if the underlying admission or renewal order (as the case may be) has been replaced in the interval by a renewal order."
17. I should also briefly refer to the judgment of Peart J. He agreed with the judgment of Hogan J. and added that in any event he would have decided the case on the basis that a renewal order "merely extends the life of the admission order". Having referred to the provisions of s. 15 of the 2001 Act he went on to say at paragraph 5 of his judgment: "The plain meaning of these provisions is that an admission order expires after 21 days unless it has been extended by a renewal order. Put alternatively, where a renewal order is made within that period of 21 days, the admission order does not expire, and continues to be the lawful basis for the patient's detention. It has simply had its life extended by the renewal order."
He went on to say at paragraph 11 of his judgment: "…However, the use of the phrase 'renewal order' is mere nomenclature. The meaning of the section is clear. The renewal order made under s. 15(2) extends the life of the admission order made under s. 15(1). That is all it does. It does not replace or of itself authorise the detention of the patient. The basis for detention remains the admission order, albeit extended."
Thus, he was satisfied that this alone provided a basis for allowing the appeal.
Submissions and discussion
18. This case concerns an apparent difficulty in the operation and interpretation of s. 19(1) of the 2001 Act. The 2001 Act provides for the involuntary detention of a patient suffering from a mental disorder. A number of safeguards for the protection of an individual who is the subject of an involuntary detention under the Act are built into the operation of the procedures under the 2001 Act. In the first place, once an admission order is made (and thereafter, a renewal order), the order must be referred to a Mental Health Tribunal for review. In the event that the patient is dissatisfied with the decision of the Mental Health Tribunal concerned, the patient has a right of appeal to the Circuit Court. As has already been explained by reference to the provisions of s. 15 of the 2001 Act, an admission order can last for no more than twenty one days after which it ceases to be in force and will then expire subject to the possibility of a renewal order having been made in the meantime. In this case, as can be seen from the outline of the facts set out above, the initial admission order was made on the 7th October, 2015. The order would then have expired in the absence of the making of a renewal order within the timeframe allowed under the provisions of the Act. The admission order in this case was affirmed by a hearing of the Mental Health Tribunal on 27th October, 2015 and on the same day a renewal order was made by Ms. F.'s psychiatrist. In accordance with the provisions of the Act, that order would have expired on 27th December, 2015 unless the order was revoked by the Mental Health Tribunal or was successfully appealed by the patient to the Circuit Court or, alternatively, if the consultant psychiatrist for the patient became of the opinion that the patient was no longer suffering from a mental disorder in which case the admission order or renewal order, as the case may be, would be discharged.
19. It will be seen that the timeframes allowed within the 2001 Act in respect of an admission order are tight. Once the admission order is received by the Commission it shall "as soon as possible" refer the matter to a Tribunal. At the same time it directs in writing a member of the panel of consultant psychiatrists to examine the patient concerned in order to determine "…in the interest of the patient whether the patient is suffering from a mental disorder and to report in writing within 14 days on the results of the examination . . . to the Tribunal to which the matter has been referred" . Thus within the period of twenty one days a period of fourteen days is permitted for a consultant psychiatrist to examine the patient concerned. It will be seen that given the timeframe concerned in relation to an admission order, it is almost inevitable that, assuming that the Tribunal affirms the order detaining the patient and given that the patient then has a right of appeal to the Circuit Court and bearing in mind the time that is likely to have been taken in (a) having the matter referred to the Tribunal in the first place, (b) having the patient examined and a report in writing prepared by a consultant psychiatrist and (c) affording the patient a right of appeal, that the likelihood is that the admission order will have expired before an appeal can be heard in the Circuit Court. In other words, it is extremely unlikely that even with the most expeditious conduct of all of the steps required under the 2001 Act, that an appeal could be heard by the Circuit Court within the twenty one day period during which an admission order is in force. As has been noted, even though the process in this case was conducted expeditiously the matter did not come before the Circuit Court until the 9th November and was ultimately listed for hearing on the 10th November, 2015, some fourteen days after the expiry of the admission order. Groarke P. in the comments referred to earlier on the 10th November, 2015 was of the view that the order was spent and in those circumstances he declined to make an order in respect of an order that was spent.
20. On that basis it would appear that although the 2001 Act expressly provides a right of appeal to the Circuit Court from a decision of a Mental Health Tribunal affirming an order for the involuntary detention of a patient, the right of appeal in the circumstances of the initial admission order is practically incapable of being exercised if the approach of the President of the Circuit Court was correct in this case.
21. It is perhaps not surprising having regard to the overall thrust of the 2001 Act that Hogan J. in his judgment sought to give s. 19(1) an interpretation which allowed for an appeal in respect of an admission order to be exercised notwithstanding the tight timeframe provided under the 2001 Act.
22. Thus, Hogan J. was driven to conclude that s. 19(1) of the 2001 Act must be read as if it read "is or was" suffering from a mental disorder. On that basis, he concluded that the Circuit Court on an appeal from an admission order was entitled to determine whether a patient was suffering from a mental disorder at the time of the Tribunal decision from which the appeal was taken. The Mental Health Commission in its submissions was of the view that such an interpretation, requiring the reading into the 2001 Act of the words "is or was", was simply not correct. Much of the submissions before this Court focused on the arguments put forward on that basis. Interestingly, counsel on behalf of Ms. F. did not dispute the contentions of the Mental Health Commission as to the interpretation of s. 19(1). Indeed, Mr. McDonagh, S.C. on behalf of Ms. F. went so far as to say that no argument had been put forward on her behalf to the effect that it was necessary to read into the section the words "is or was".
23. It is worth recalling that in the course of his judgment, Hogan J. considered at length the decision of the High Court in the case of Han . in which Charleton J. considered the scope of a s. 19 appeal to the Circuit Court. In the course of his judgment, he commented:
"The sole issue before the Circuit Court under the Mental Health Act 2001 is whether or not at the time of the hearing the patient is or is not suffering from a mental disorder."
24. Han. concerned the right of a patient who had been discharged from involuntary detention to appeal a decision of the Mental Health Tribunal to the Circuit Court. It is worth quoting at length from the judgment of Charleton J. where he stated as follows: "It is argued that it would be absurd not to allow for an appeal to the Circuit Court from a review conducted by the Mental Health Tribunal at the request of a discharged patient. I do not agree that just because a discharged patient can insist on the Mental Health Tribunal looking at the issues surrounding his or her detention as a patient that an appeal must lie in respect of all of those issues to the Circuit Court. Expressly, the Circuit Court on appeal from the Mental Health Tribunal, and the High Court on appeal from that on a point of law, can only consider one issue: is the patient suffering from a mental disorder at the time of the hearing and if he or she is not the court must order his or her release from detention under the Act. As to what modification of s. 19 is necessary as a result of s. 28, the answer to that is that s. 19, is limited by its express words to the current condition of the patient and that the power of appeal under s. 28, is expressly stated as being to a Mental Health Tribunal. The modification necessary is that a patient being discharged can seek to have what happened to him or her as to detention in a mental hospital reviewed by the Mental Health Tribunal. They have no further power to appeal any decision of that Tribunal once they are released. They do have a power to appeal the decision of that Tribunal to the Circuit Court, but only where they are still detained, solely on the grounds that they are no longer suffering from a mental disorder; but they cannot do this if they are no longer detained under the Mental Health Act 2001, because a psychiatrist treating them has decided that they are well and so must be released. There is nothing in the Constitution which requires all and every, or any, decision, of the Mental Health Tribunal to be reviewed by the courts under a statutory scheme. The legislation limits the powers of the Circuit Court on appeal from the Mental Health Tribunal to a single narrow issue on the current state of the health of a detained patient. The legislation limits the statutory right to appeal of a person who was once detained as a patient but has been discharged to the ample powers as to review given to the Mental Health Tribunal. It is also noteworthy that the powers of the Mental Health Tribunal, whether the patient has been discharged or not, cover not only his or her current state of health but the historic matters of how the relevant sections of the Mental Health Act were operated. The Circuit Court, as I have pointed out, never had such a power of historic review.
The legislative purpose behind s. 19 of the Mental Health Act 2001 is to allow those patients who are still detained, following on a hearing before the Mental Health Tribunal, to have the condition of their mental health reviewed before a judge of the Circuit Court. It is not to engage in a historical analysis. Whether there would be a point, or would not be a point, to such an historical analysis is irrelevant given the express wording of the section. I am obliged to give grammatical and ordinary sense to the use of the present tense in s. 19, and to the choice given to the Circuit Court of either affirming an admission or renewal order or revoking it.
. . . A patient detained by an admission order or a renewal order under the Mental Health Act 2001, automatically has his case reviewed as to his state of mental health and as to the operation of the detention provisions in the Act by the Mental Health Tribunal. The provisions of the Act allow for independent clinical examination and independent legal representation. Where a decision has been made by the Mental Health Tribunal, on such review, that a patient is suffering from a mental disorder and is in consequence detained under the Act then a patient may appeal that decision, and that decision only, to the Circuit Court. The Circuit Court has no jurisdiction to decide any such appeal unless the person is then the subject of an admission order or a renewal order, and is thus detained in a hospital. The sole issue that can come before the Circuit Court under the Mental Health Act 2001 is whether or not at the time of the hearing the patient is or is not suffering from a mental disorder."
25. Commenting on that passage from the judgment in Han., Hogan J. said at paragraphs 27 to 28 of his judgment: "27. It is admittedly difficult to disagree with such a powerfully argued and reasoned judgment. It is quite true that, as Charleton J. has so painstakingly illustrated, s. 19 is couched in the present tense ('. . . is not suffering from a mental disorder . . .') and unlike the Tribunal, the Circuit Court has been given no express power to deal with the historical position of any given patient. The Tribunal is vested with such a jurisdiction, because although its principal role is also to determine whether the 'patient is suffering from a mental disorder', it is also expressly required by s. 18(1)(a)(i) and (ii) to consider whether the statutory requirements in relation to admission orders and renewal orders have been complied with. If matters stood at that point, then I agree that Charleton J.'s analysis would be unimpeachable.
28. The difficulty, however, with this approach is that it effectively renders s. 28(5) of the 2001 Act unworkable. Section 28(5) expressly envisages that a patient who has been released from involuntary detention because he is no longer suffering from a mental illness is nonetheless entitled to insist that the original decision to detain him or to renew that detention be reviewed by the Tribunal. Just as in the case of s. 19(1), the language of s. 18(1) dealing with the role of a Mental Health Tribunal in respect of either affirming or revoking admission or renewal orders is expressed to be in the present tense ('. . . if satisfied that the patient is suffering from a mental disorder . . .')."
26. Hogan J. then went on to say that s. 28(5) further expressly contemplates ". . . that a person no longer suffering from a mental disorder should be able to appeal a decision of a Tribunal to the Circuit Court, since that sub-section provides that s. 19 should apply in relation to the s. 18 review 'with any necessary modifications'." It was for that reason that by reference to the provisions of s. 28(5) he concluded at paragraph 34 of his judgment as follows: "In this situation, therefore, the lex specialis contained in s. 28(5) must be held to prevail over the purely general provisions of s. 19(1). What, then, is the consequence of this? To my mind it must follow that in order to make s. 28(5) operative, this in turn must require some modification of the literal words of s. 19(1). The Oireachtas could not reasonably have intended that by expressly providing that the person who had been - but was no longer - suffering from a mental illness would nonetheless be entitled to maintain such an appeal only to find that the Circuit Court dismissed that appeal by reason of the fact that he was no longer suffering from a mental disorder at the time of the hearing of the appeal."
Thus, Hogan J. came to the conclusion that s. 19(1) of the 2001 Act must be read as if it read the patient "is or was" suffering from a mental disorder. Therefore, he was of the view that the consequence of that was that the Circuit Court in this case had jurisdiction to hear an appeal against the affirmation of the admission order by the Tribunal even though that original order had been replaced by a renewal order.
27. Looking at the construction of s. 19 (1) of the 2001 Act, I find that I cannot accept the analysis of Hogan J. to the effect that s. 19(1) of the 2001 Act must be read as if it read "is or was" suffering from a mental disorder. It seems to me that a literal interpretation of the Act does not permit of such an interpretation. I am unable to agree with the line of reasoning to the effect that the provisions of s. 28(5) must be held to prevail over the general provisions of s. 19(1). To that extent, I think the approach of Charleton J. in Han. as to the interpretation of s. 19(1) was correct. The focus of the Mental Health Tribunal at the time of its review is to consider if the patient is or is not suffering from a mental disorder. If the patient is suffering from a mental disorder at that time it affirms the order. If not, it can revoke the order. The focus of the Circuit Court on appeal is the same. If the patient concerned is no longer suffering from a mental disorder, it can revoke the order at that stage. Alternatively, if the Court is not satisfied that the patient is not suffering from a mental disorder the order has to be affirmed. In other words, it is manifestly clear that the focus of the provisions under the 2001 Act is on the present situation of the patient concerned and is not intended as and does not operate as an historical review of the situation that pertained at the time of the admission. It would appear that the provisions of s. 28(5) which provide for a review in circumstances where the patient has been discharged can only apply historically. The provisions of s. 28(5) refer to a review under s. 18 which is either commenced or if it has not commenced permit the patient concerned to have such a review. This is a review by the Mental Health Tribunal and obviously in circumstances where the patient has already been discharged, there can be no question of either affirming or revoking the order concerned. Under s. 28, the patient has already been discharged as a result of the consultant psychiatrist responsible for the care and treatment of the patient becoming of the opinion that the patient is no longer suffering from a mental disorder. Accordingly, whilst the review takes place under s. 18 as provided for in s. 28(5), where such a review is required by the patient to be either completed or to be held then, clearly, in those circumstances the section contemplates an historical review.
28. It should be borne in mind that this case does not concern the application of s. 28 (5). A full consideration of s. 28 (5) can be left over to a case in which it is necessary to consider whether Charleton J. was correct in his interpretation of the provisions of that part of the 2001 Act.
29. I now want to turn to a consideration of the judgment of Peart J. I have previously made reference to certain passages from his judgment but it is necessary to look at the judgment again. When considering the provisions of s. 15, subs. (1) and (2) of the 2001 Act, Peart J. noted that the renewal order extends the life of the admission order and does not replace it. He expressed the view at paragraph 5 of his judgment:
"The plain meaning of these provisions is that an admission order expires after 21 days unless it has been extended by a renewal order. Put alternatively, where a renewal order is made within that period of 21 days, the admission order does not expire, and continues to be the lawful basis for the patient's detention. It has simply had its life extended by the renewal order."
30. Having referred to two earlier judgments, namely the High Court matter of W.Q. v. Mental Health Tribunal [2007] 3 IR 755 and a decision of Kearns J. in the Supreme Court in the case of E.H. v. Clinical Director of St. Vincent's Hospital [2009] 3 IR 774, Peart J. commented that neither of those cases concerned a situation where the Court was considering the question of whether a renewal order had some freestanding status or whether it was simply extending the life of the detaining order, that is to say, the admission order. He went on to say at paragraph 11: "The use of the word 'renewal' suggests that what went before has come to an end. But, as I have pointed out, s. 15(1) of the 2001 Act in effect provides that it comes to an end ONLY in the event that it is not extended by a renewal order. The renewal order might just as easily have been described as an 'extension order', whereby the meaning would not have tended to mislead. However, the use of the phrase 'renewal order' is mere nomenclature. The meaning of the section is clear. The renewal order made under s. 15(2) extends the life of the admission order made under s. 15(1). That is all it does. It does not replace or of itself authorise the detention of the patient. The basis for detention remains the admission order, albeit extended."
On that basis, he concluded that that sufficed for the purpose of allowing Ms. F.'s appeal. He also went on to agree with the judgment of Hogan J.
31. The issue considered of relevance by Peart J. in his judgment in this case, namely, the interpretation of s. 15 of the Act, was not one that fell to be considered by Charleton J. in the case of Han. v. President of the Circuit Court to which reference has previously been made. In that case, what was at issue was the interpretation of s. 19 of the Mental Health Act 2001 and whether the provisions of s. 28(5) permitted an appeal to the Circuit Court once the patient had been discharged. The High Court in that case found that the words of s. 19 of the 2001 Act limited the powers of the Circuit Court to the single narrow issue of the current state of health of a detained person. Charleton J. further noted that a review by a Mental Health Tribunal pursuant to s. 28 of the 2001 Act was necessarily historical since the relevant sections were concerned not only with whether the patient was suffering from a mental disorder but also with whether the administrative sections which led to the patient's detention had been complied with. Since the operation of those sections depended on whether a patient had a mental disorder he concluded that one could not remove that issue from the review. In the course of his judgment, Charleton J. emphasised that the role of the Circuit Court in considering an appeal from a Mental Health Tribunal under the 2001 Act is whether or not at the time of the hearing the patient is or is not suffering from a mental disorder. He was, as I have previously mentioned, focused on the position of a patient who had been discharged and whether that person was entitled to pursue an appeal from a Mental Health Tribunal to the Circuit Court.
32. He did not, as I have already mentioned, consider what should happen in circumstances such as have occurred in this case. What is to happen to the person who is the subject of an admission order, who appeals the admission order, and whose appeal is not heard before a renewal order is made?
33. As was stated in the long title of the Act one of its purposes was to provide for "the independent review of the involuntary admission of such persons". The means by which that was to be done was by the creation of a Mental Health Commission and the appointment of Mental Health Tribunals. In addition, decisions of the Mental Health Tribunals were subject to appeals to the Circuit Court and, in appropriate cases, appeals on a point of law to the High Court. The focus of the Act is on the current condition of the patient. In other words, at the time of making an admission order, the consultant psychiatrist concerned has to be satisfied that the patient is then suffering from a mental disorder. If so satisfied, the Commission, on receipt of the admission order, must refer the matter to a Tribunal. The Tribunal must also consider whether at the time of the hearing before the Tribunal the patient is suffering from a mental disorder. Finally, if the matter is appealed to the Circuit Court, the Circuit Court again has to consider whether or not the person concerned is or is not suffering from a mental disorder at the time of the hearing before the Circuit Court. In other words, at all stages (save for the exception provided for in s. 28(5) of the 2001 Act to which reference has previously been made) the focus of any hearing before the Tribunal or the Circuit Court is the current state of the patient concerned and whether the patient is or is not at that time suffering from a mental disorder. It is worth bearing in mind at this point the definition of mental disorder to which reference has been made previously, namely that the patient concerned is suffering from either mental illness, severe dementia or significant intellectual disability where:
(a) because of that illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or
(b) 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
(c) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.
34. Having regard to the definition of mental disorder, it will be readily apparent that a Mental Health Tribunal, or, indeed the Circuit Court on appeal from a decision of the Mental Health Tribunal will be focused on the current state of the mental health of the patient and, to take one example, will be focused on considering whether there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons.
35. It is important to emphasise that the thrust of the 2001 Act is the creation of significant protection for a patient who may be the subject of an involuntary detention. It has always been a hallmark of a constitutional democracy such as ours that the deprivation of the liberty of an individual is not to be lightly undertaken. This is so whether one is concerned with the situation of a person convicted of a criminal offence or a situation such as this where a person may be the subject of an involuntary detention by reason of the state of their mental health. It is not therefore surprising that the structure of the 2001 Act is predicated on the need to ensure that no one is deprived of their liberty without appropriate safeguards being in place which allows them to challenge the basis of their detention. Thus, the 2001 Act created for the first time the Mental Health Commission and provided for the creation of Mental Health Tribunals. Every admission or renewal order must be referred to a Mental Health Tribunal and thus a person detained on the basis that they are suffering from a mental disorder has an automatic right to have the decision of the consultant psychiatrist reviewed, no matter how eminent the consultant psychiatrist in question may be. That is the right of every patient. Even then, the fact that the matter has been reviewed and the order affirmed is not the end of the matter as the patient has a right of appeal to the Circuit Court.
36. Given the structure of the Act and the provision of such safeguards could it possibly be the case that because of the time strictures involved that an individual who has been admitted to the care of an approved centre would never have a meaningful appeal to the Circuit Court from the making of the initial admission order? It is worth recalling very briefly the chronology of events in this case. The admission order was made on the 7th October, 2015 and was affirmed by the Mental Health Tribunal on the 27th of that month. On the same date a renewal order was made authorising detention. The notice of appeal to the Circuit Court was filed on the 28th October against the decision of the Tribunal to affirm the admission order. By that stage, a renewal order had been made. Is it to be seriously understood that given the careful provisions contained in the 2001 Act providing necessary safeguards for a patient who is the subject of an involuntary detention order that an appeal from the making of an admission order is rendered moot simply by virtue of the fact that a renewal order has been made? Given the timeframes provided for in the Act, including the need to have up to date psychiatric evidence for the purpose of the hearing before the Mental Health Tribunal and subsequently the Circuit Court, it seems to me that to interpret a renewal order as being a separate and distinct order such that a renewal order made immediately after the expiry of an admission order in practical terms renders moot any appeal from an admission order affirmed by a Mental Health Tribunal would be at variance with the underlying policy of the Act.
37. I cannot see how it could be understood that the Oireachtas would enact provisions providing for an appeal from a decision of an admission order where, if the approach taken by the Circuit Court in this case was correct, such an appeal would be rendered moot before it could even be filed in the Circuit Court. This does not seem to me to be a permissible construction of the provisions of the Act. Such a possibility would not arise if the interpretation of s. 15 of the Act as enunciated by Peart J. in the course of his judgment is correct. Given the overall thrust of the legislation, I am satisfied that his approach is correct. As he made clear s. 15(1) provides that an admission order "shall remain in force for a period of 21 days from the date of the making of the order . . . and shall then expire". S. 15(1) (as already been seen) is subject to the provisions of s. 15(2). It expressly provides that the twenty one day period referred to in s. 15(1) "may be extended by order . . . for a further period not exceeding three months". Thus, the original admission order is thereby extended. It is not that it ceases to be valid. It is not that it ceases to be expired. It is extended. Therefore, it is for that reason that, in my view, Peart J. was correct in concluding that the renewal order extends the life of the admission order made under s. 15(1). As he said "It does not replace or of itself authorise the detention of the patient. The basis for detention remains the admission order, albeit extended". In those circumstances he concluded that that provision provided a basis for allowing the appeal by Ms. F. I agree. Accordingly, it is my view that when the matter came before the Circuit Court on the 10th November, 2015, the matter was not moot and the issue of the validity of the admission order could have been considered at that stage. This does not preclude the fact that given that a further renewal order had been made, that order could subsequently give rise to an appeal in accordance with the provisions of the Act. Likewise, it should be clearly understood that the Court in carrying out an examination is bound to consider the up to date situation of the patient and whether at the time of the hearing before the Circuit Court the patient is or is not then suffering from a mental disorder. At any such hearing the focus should have been on the then situation of Ms. F. The position at that stage quite simply was that the admission order was extant and had not expired purely by reason of the fact that a renewal order had been made. Therefore, there was nothing to preclude the Circuit Court from embarking on a hearing at that stage in relation to the then position of the patient.
Conclusions
38. For the reasons set out above, this Court, whilst agreeing with the order made herein by the Court of Appeal granting an order of Certiorari quashing the Order of the Dublin Circuit Court dated the 10th day of November 2015, does not agree with the interpretation of s 19(1) of the 2001 Act by Hogan J. to the effect that the words "is or was" suffering from a mental disorder can be read into s.19(1) for the reasons set out above
This Court is satisfied that having regard to the provisions of s. 15 (1) and s.15(2) of the 2001 Act, an admission order expires after 21 days but the period of the admission order may be extended by a renewal order. In such circumstances, the admission order does not expire - the admission order is extended.
That being so, the appeal was not moot when it came before the Dublin Circuit Court on the 10th November 2015.
In all the circumstances outlined above, I am satisfied that the appeal of the Mental Health Commission should be dismissed and the Order of the Court of Appeal should be upheld.
