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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Gooden v. Waterford Regional Hospital  IESC 14 (21 February 2001)
Cite as:  IESC 14
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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
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
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:-
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.
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.
30th November 2000 the Appellant again applied
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.
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
Re D.  IR 459 at 457:
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:-
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:
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
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.”
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
regard to the interpretation of Section 184 of the 1945 Act, which provides
that a patient is to be
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.
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
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.
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.
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
(Ivers) v Murphy  1 ILRM 46 at page 60
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.
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.
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:-
Counihan also stressed the importance of the constitutional right to liberty
and referred to the dictum of Costello P. in
v Director Central Mental Hospital  2 IR 65 at page 79
where the learned President stated:
dictum was specifically approved by this Court in
v Smith (No.2)  1 IR 101 at 118.
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.
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.
regard to the argument that Mr Bernard Tyers was a mere
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.
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
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
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.
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.
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
Philip Clarke  IR 253
where the previous Supreme Court had held that the 1945 Act
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.
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
(Ivers) v Murphy  1 ILRM 46
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
Denham J. stated:
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.
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.
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.
Appellant was a voluntary patient in St. Otteran’s Hospital who gave
notice that he wished to discharge himself. The unchallenged medical evidence
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
to the expiration of the notice period; he is to be allowed to leave
or at any time
its expiry (my emphasis).
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 -
must imply that if the patient concerned is too ill to be discharged at the end
of the 28 day period the hospital may,
set in train the machinery for obtaining a Reception Order.
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.
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
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.
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.
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
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
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.
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
institution in which it is desired to have him received and detained”.
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.
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:
power conferred by paragraph (a) is the power to
the person to whom the application relates and convey him to the institution in
which it is decided to have him received and detained”
unlike the words
in Section 184 of the 1945 Act, definitely implies movement from another place
to the institution in question. The primary meanings of
given by the Oxford English Dictionary are
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.
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
v Commissioner of an Garda Siochana  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.
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.
has also become clear that the crucial protection of a right to an independent
second opinion does not extend to all
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.
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.
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.
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.
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.
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  2 App Cas 743, Nestor v. Murphy  IR 326, Pepper v. Hart  1 AER 432 and DPP (Ivers) v. Murphy  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.
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  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.