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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> M.D. -v- Clinical Director of St. Brendan's Hospital & anor  IESC 37 (27 July 2007)
Cite as:  1 IR 632,  IESC 37
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Judgment Title: M.D. -v- Clinical Director of St. Brendan's Hospital & anor
Composition of Court: Hardiman J., Fennelly J., Macken J.
Judgment by: Hardiman J.
Status of Judgment: Approved
THE SUPREME COURT
Hardiman J. 188 & 190/07
IN THE MATTER OF AN INQUIRY
PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION
THE CLINICAL DIRECTOR OF ST. BRENDAN’S HOSPITAL and MIRIAM GANNON
THE MENTAL HEALTH COMMISSION and THE MENTAL HEALTH TRIBUNAL
JUDGMENT of Mr. Justice Hardiman delivered the 27th day of July, 2007.
On the hearing of this appeal the Court was requested on both sides of the case to take such steps as were possible to prevent the publication of the applicant’s name or at of any detail which might identify him. This was requested on the basis that he was, undisputedly, a person under a disability.
The Court did not consider that it had, in these proceedings, any power to make an order in that regard. However the Court agreed to, and did, request any representatives of the media who might be present not to publish his name and said that it would not itself do so. The Court now repeats this request to any person who may wish to report this case either for the ordinary media or for the purposes of law reporting.
Factual and Procedural Background.
The applicant is a middle aged man who has a long history of contact with the psychiatric services due to his being afflicted with schizophrenia. He was first admitted as in-patient into St. Brendan’s Hospital more than twenty-five years ago and he had multiple admissions since. The foregoing can be said with confidence on the basis of statements made by or on behalf of the respondents and notice parties in the present proceedings, without contradiction by the applicant.
In March 2007 the applicant became unwell and was admitted to St. Brendan’s Hospital as a voluntary patient. On the 16th March he left the hospital and went home. I do not think it is appropriate to use the term “absconded” to describe this departure from the hospital (as the respondents have done) since he was a voluntary patient and was entitled to leave at any time. Moreover, this occurred on the 16th March and on the 18th March, 2007 (the intervening day being a public holiday) the authorities agreed to assess him continuously in his family home. The applicant was therefore, easy to contact and prepared to come to a mutually acceptable arrangement for non-custodial treatment.
On the 24th April, 2007 a sister of the applicant who resides at the same address became concerned about him in a particular context and on the following day another sister, who also resides at the same address, made an application pursuant to the Mental Health Act, 2001 to a doctor, Hdubuisi Achara, a general practitioner, for a recommendation that the applicant be involuntarily admitted to hospital. This application was made in the form specified by the first-named notice party pursuant to s.9(3) of the Act of 2001.
On foot of the sister’s application the general practitioner examined the applicant and made various findings, which to a large extent mirror the complaints made by the sister and are suggestive of mental disorder of an almost stereotypical sort. These findings were as follows:
Thinks he is God and receiving references from the T.V. and radio.”
The general practitioner formed a view that the applicant was suffering from mental disorder and that:
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.”
This recommendation addresses the requirements of s.10 of the Act of 2001. According to a shoulder note, this Section relates to the “making of recommendations for involuntary admission.” The form also recites, as the Act requires, that the purpose of the examination by the G.P. was explained to the applicant.
On the following day, the 26th April, 2007 a consultant psychiatrist, Dr. Rita Hughes, who is the Clinical Director of St. Brendan’s Hospital, examined the patient and found that he was:
Pursuant to s.17 of the Act the admission order required to be notified to the Mental Health Commission and to the applicant. The Commission was then obliged to refer “the matter” to a tribunal and to assign a legal representative to represent the patient. By letter dated the 1st May, 2007 to Mr. Keith Walsh, Solicitor, the Commission appointed him legal representative for the patient. It is fair to say that, throughout the subsequent proceedings, Mr. Walsh, in my view, displayed conspicuous commitment and diligence in his client’s interest. The Commission also arranged for an independent medical examination of the applicant by a psychiatrist, as it was required to do.
By letter dated the 14th May, 2007 the Commission wrote to Mr. Walsh and notified him that a Mental Health Tribunal would sit in St. Brendan’s Psychiatric Unit, Rathdown Road, Dublin 7, on the following day at 2.30pm to conduct “a review”. He was notified of the composition of the Tribunal.
It is to my mind a remarkable feature of the case that this letter failed to notify Mr. Walsh of a very significant development. This was that on the 10th May, 2007 another psychiatrist, Dr. Gannon, had made, in the Commission’s “Form 7”, a “Renewal Order, by a responsible Consultant Psychiatrist.” Most of the confusion which followed was caused by the making of this order, the failure to notify the legal representative of it, and the defective notification of the patient himself. The obligation to notify the patient arises under s.16 of the Act and requires him to be told the statutory basis for his detention. There are only two possible statutory grounds which are identified on the form used to notify the patient as (a) and (b). The doctor making the order is required merely to tick one or the other. Dr. Gannon ticked neither. No explanation has ever been given for this omission, but it was a serious one, a breach of the statute, and something which caused considerable avoidable suspicion.
The Mental Health Tribunal duly sat on the 15th May. It consisted of a Chairperson, who was a barrister, a Consultant Psychiatrist other than the one involved in the care of the applicant, and a lay member. It expressed its decision in “Form 8” provided by the first-named notice party, which referred to Sections 18, 21 and 58 of the Act of 2001. Its decision was:
This is an absolutely essential part of the Tribunal’s functions and is necessary in law because of the Tribunal’s very considerable powers directly to affect the rights of a patient, including his right to liberty. It also arises from the terms of s.49(6)(j) of the Act of 2001. This Section deals in general with the obligations and procedures of a tribunal and the relevant sub-paragraph obliges it to attend to “the making of a sufficient record of proceedings of the Tribunal.” The requirement to give reasons for a Mental Health Tribunal’s decision in my view arises both in natural justice and under statute.
This, of course, is absolutely essential if the decisions of this powerful body are to be subject to proper review. It is important in the circumstances of this case to recall that neither the consultant psychiatrist nor the Tribunal can avoid or frustrate the review simply by the making of an inadequate or insufficient record of the exercise by them of the very considerable powers conferred upon them by statute.
The record of the Mental Health Tribunal’s proceedings is, however, in general satisfactory. The following points are of importance.
The Tribunal interpreted its obligation to review the detention of the applicant as discharged by reviewing his detention following the admission order i.e. the order made on the 26th April, 2007. In doing this it rejected a submission made by Mr. Walsh, Solicitor, on behalf of the applicant which is recorded as follows:
The submission, summarised above by the Mental Health Tribunal continued to form the nub of the applicant’s case on the hearing of the present application in the High Court and in this court. This argument is fundamentally directed to the procedures adopted: it is not denied that the applicant is suffering from a mental disorder, nor that detention and treatment in the hospital would be likely to “benefit or alleviate the condition to a material extent”.
The applicant relies heavily on the general scheme of the Act which he says is directed to ensuring that no person should be detained in a mental hospital against his will without independent review. He points out that, having been detained on foot of an admission order pursuant to s.14, a renewal order pursuant to s.15 was made, without his knowledge, a few days before the Mental Health Tribunal was due to sit to review his initial reception into and detention in, the hospital. He was not told of this and nor was the lawyer whom the Mental Health Commission were obliged to appoint to look after his interests. In these circumstances he raises the question of the date on which the renewal order made on the 10th May becomes effective, and, secondly if the renewal order is effective to authorise his detention from the date of its making (10th May, 2007) whether the lawfulness of his original detention under the reception order was vitiated by reason of the renewal order having been made prior to any review of his initial reception and detention by the Mental Health Tribunal pursuant to s.18 of the Act.
By reason of the submissions made it is necessary to set out certain highly relevant statutory submissions. The first of these is a portion of s.18 of the Act of 2001 which requires the holding of a review.
Section 18(1) provides as follows:
‘(a) If satisfied that the patient is suffering from mental disorder, and
(i) That the provisions of Section 9, 10, 12, 14, 15
such provision, that the failure does not affect
the substance of the order and does not cause an
affirm the order or
(c) If not so satisfied, revoke the order and direct
the patient be discharged from the approved
(a) Refer to the matter to a tribunal,
(b) Assign a legal representative to represent the patient concerned unless he or she proposes to engage one,
(c) Direct in writing (refer to this section as a direction) a member of the panel of Consultant Psychiatrists established under s.33(3)(b)(2) to
(i) Examine the patient concerned,
(ii) Interview the Consultant Psychiatrist responsible for the care and treatment of the
(iii) Review the records relating to the patient.
It appears to me from the facts set out above that the tribunal which sat on the 15th May, 2007 had ample evidence from which it could be satisfied that the patient was suffering from a mental disorder and the source of this evidence (Dr. Gannon) is identified in the decision of the tribunal.
It does not appear to me that the admission order was spent at the time the tribunal sat. Since it was made on the 26th April and, by virtue of s.15 of the 2001 Act “Shall remain in force for a period of 21 days from the day of the making of the order…”, it appears to me that it was, in principle, in force until the 17th May. I do not see that the making of the renewal order under s.15 operated, prior to that date, to bring an end to the detention under the admission order (s.14) or to deprive the Mental Health Tribunal of jurisdiction. My reasons for this are substantially identical to those of the learned High Court Judge and I wish respectfully to adopt his decision to the extent set out below as follows:
(a) That is obscure or ambiguous, or
(b) That on a literal interpretation would be absurd or would fail to reflect the plain intention of -
(i) In the case of an Act to which paragraph (a) of
the definition “Act” in s.2(1) relates, the Oireachtas, or
(ii) In the case of an Act to which paragraph (b) of
that definition relates, the Parliament
In these circumstances I am satisfied that the applicant is being detained in accordance with law and in his own interest and I would decline to grant the relief sought.
I would however express some anxiety about two aspects of the procedures adopted in this case. The first is the omission of the Consultant Psychiatrist making the order under s.15 (the renewal order) to inform the patient of the statutory provision under which he was being detained. The patient had an absolute right to be so informed. If the doctor herself was uncertain as to the power she is considering exercising, that is a matter which would cast doubt on the question of whether she should proceed to make an order at all.
I note that, at the subsequent Mental Health Tribunal on the 29th May, Dr. Gannon purported to amend her order on the 10th May by indicating that the power she had then been exercising was that conferred by s.15 of the Act of 2001. But this cannot be regarded as a satisfactory amendment: there was an obligation on the doctor to give notice of the making of her order to the patient and to the Mental Health Commission within 24 hours of its making: an amendment made 19 days after the original order was purportedly made can hardly be regarded as meeting such a requirement.
It is important to stress that the requirement to give notice to the patient is a statutory requirement contained in s.16 of the Act. The terms of s.16 are important. By s.16(2) it is provided that:
(a) is being detained pursuant to s.14 or 15, as the case
may be….” (Emphasis added)
From that provision it will be observed, firstly, that the obligation to notify the patient of the statutory basis of his detention is mandatory and not a matter for the discretion of the doctor. Secondly, the information must relate to the detention of the patient at the time he is served with the notice and not at any earlier or later time.
I am also concerned that the legal representative appointed to consider and attend to the interests of the patient was not informed of the making of the renewal order. It appears that, in the course of his diligent preparations for the hearing of the 15th May, Mr. Walsh attended at the hospital on the evening of the 14th May and inspected the patient’s file. There he found the renewal order, thus becoming aware of it for the first time. He could see that the doctor had not committed herself to any view of the statutory basis for his client’s detention and he was in my view correct and justified in raising this matter before the tribunal. I do not however consider that the doctor’s omission in this regard could possibly operate to deprive a tribunal of the powers necessary to carry out its statutory obligations under s.18 of the Act. So to hold would be to compound the confusion which had arisen and to deprive the patient of his entitlement to a review of the s.14 detention.
I am equally concerned that, the doctor having omitted to comply with s.16(2)(a), the tribunal nevertheless certified that s.16 had been complied with. It manifestly had not. The tribunal then went on to certify that, “if there has been a failure to comply with any such provision, the failure does not affect the substance of the order and does not cause an injustice.”
In my view it was illogical to reach both of these findings. If the first finding was correct, the second was otiose. If the proviso contained in s.18(1)(a)(ii) (that there has been a failure it did not affect the substance of the order or cause an injustice) requires to be invoked, as it did, then that situation will arise only if there has in fact been a failure to comply with some section of the Act. Moreover I cannot see how it can be certified, as it was, that if there has been a failure to comply with any such provision then the failure did not affect the substance of the order and did not cause an injustice, unless the precise failure in question is identified and its effect ascertained.
Mr. McDonagh is in my view correct in his submission that the Act, and in particular Sections 9 - 18 thereof, is intended to constitute a regime of protection for persons who are involuntarily detained because they are suffering from a mental disorder. That purpose will not, in my view, be achieved unless the Act is complied with. The Mental Health Tribunal consists of three persons, a lay representative, a lawyer and a psychiatrist. It is in my view important that, if it is found that a particular section of the Act has not been complied with, that fact should be ascertained, recorded, and its effect discussed. Only in this way can the Mental Health Tribunal hope to contribute to a situation of total compliance with the statutory provisions. Since the Act is operated exclusively by highly skilled professional people it is reasonable to hope that its provisions will be complied with and any difficulties that may be found in compliance identified and, if necessary, addressed. For example, it might be questioned, on the basis of experience in operating the Act and further consideration whether the form used to inform a patient of the meeting of an order under s.14 or s.15 is the best that can be devised in the circumstances having regard to the terms of the statutory provisions themselves.
In particular, s.16 requires notice of the making of a renewal order to be given to a patient within 24 hours; the form does not appear to provide for the possibility that such order may not become the basis for detention for some time into the future.
I would dismiss the appeal.