In IF, Dunne J recognised the importance of a patient’s right to appeal where they have been involuntarily detained by reason of their mental illness.
At paragraph 35, she states: “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.”
This is in line with previous case law on the Mental Health Act 2001, which has emphasised the necessity of safeguards where patients are detained involuntarily. This position is set out in HSE v AM (29 January 2019): “Involuntary detention for psychiatric reasons has a long and sometimes disturbing history in many jurisdictions.
“This judgment now considers the scope of the 2001 act and the safeguards contained there. What is dealt with generally in this act is a deprivation of the fundamental constitutional right to liberty. Awareness of this fact is necessary to understand the protections the act contains.”
I want it all
The Mental Health Act 2001 contains a right of appeal for patients against decisions of the Mental Health Tribunal. The role of the Mental Health Tribunal under the 2001 act is to affirm or revoke admission orders or renewal orders made by consultant psychiatrists responsible for the care of the patient at approved centres of detention.
The decision of the tribunal to revoke or affirm the admission or renewal order, in reviewing the detention of the patient, is based on whether or not the tribunal is satisfied that the patient is suffering from a mental disorder, and whether or not certain procedures under the 2001 act have been complied with.
That decision, to revoke or affirm the admission or renewal order of the psychiatrist, can be appealed by the patient under the 2001 act to the Circuit Court. However, exercising that right to appeal, as is demonstrated by the facts of IF, is far from straightforward.
Now I’m here
On 6 October 2015, an application was made by a member of An Garda Síochána, pursuant to section 12 of the 2001 act, to take Ms F into custody, as it had been reported that Ms F had threatened her neighbours with a butcher’s knife.
A recommendation was made by a general practitioner for her involuntary admission under section 10 of the 2001 act, and Ms F was subsequently brought to an approved centre. Ms F was subject to an admission order the following day, on 7 October 2015, pursuant to section 14 of the 2001 act.
She had a long history of mental illness at the time of the making of her admission order. The admission order was due to expire on 28 October 2015.
On 27 October 2015, the admission order was affirmed by the Mental Health Tribunal, pursuant to section 18(1)(a) of the 2001 act. An appeal to the Circuit Court was lodged on behalf of Ms F the following day under section 19 of the 2001 act. The appeal date was set for 10 November 2015.
In the meantime, prior to the appeal coming on for hearing, a renewal order had been made on 27 October 2015, pursuant to section 15(2) of the 2001 act, extending the period of involuntary detention of Ms F until 27 December 2015.
When the appeal was heard by President Groarke on 10 November 2015, he declined to hear the appeal against the admission order, 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.”
Matters then proceeded. Paragraph 11 of the judgment states: “The renewal order was considered by a second Mental Health Tribunal (on 16 November 2015). That order was the subject of an appeal to the Circuit Court and, on 15 December 2015, the Circuit Court heard the appeal against the decision of the Mental Health Tribunal of 16 November 2015, affirming the renewal order, and the Circuit Court in its turn affirmed the first renewal order made on 27 October 2015.”
Ms F commenced judicial-review proceedings, seeking, among other things, an order of certiorari quashing the order of Groarke P on 10 November 2015, and further sought a number of other reliefs, including: “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 section 19 of the Mental Health Act 2001 is invalid having regard to the provisions of the Constitution of Ireland 1937.”
It’s a hard life
In the High Court, Barrett J declined to grant the reliefs sought by Ms F. However, the Court of Appeal allowed the appeal of Ms F, in judgments delivered by Hogan J and Peart J. The Mental Health Commissions then appealed to the Supreme Court.
Barrett J, in the High Court, held that Ms F’s appeal against her admission order had become moot, as that order had been supplanted by the renewal order.
The Circuit Court could not affirm the admission order and, as the Mental Health Tribunal had not yet affirmed or revoked the renewal order, the Circuit Court would have been premature to make a finding concerning the renewal order.
He rejected the contention that section 19 of the 2001 act was unconstitutional, stating that, even if the act did not provide an appeal mechanism in respect of decisions of the Mental Health Tribunal concerning admission orders, this would not render the section invalid.
Save me
Hogan J, in his judgment allowing the appeal of Ms F, considered at length the decision of Charleton J in the High Court in Han v President of the Circuit Court. Han concerned a patient who had been discharged.
It was held that a discharged patient can seek to have their detention reviewed by the Mental Health Tribunal under section 28 of the 2001 act. Charleton J found that this was distinct to section 19, which was limited by its express words to the current condition of the patient.
The relevant section 19(1) of the 2001 act sets out the following: “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.”
Charleton J found that the use of the present tense in section 19 – “he or she is suffering from a mental disorder” – meant that the purpose of this section was to allow for patients who were still detained following from a decision of the tribunal to have their condition reviewed before the Circuit Court; however, the court “is not to engage in a historical analysis”.
Charleton J found that the right of appeal under section 19 applied only in circumstances where the person ‘is’ suffering from a mental disorder.
Hogan J found that Charleton J’s literal interpretation of section 19(1) in Han was incorrect, as it rendered another section of the 2001 act, section 28(5), practically unworkable.
He held that the lex specialis contained in section 28(5) must be held to prevail over the general provisions of section 19(1).
Section 28(5) of the 2001 act applies where a patient has been discharged, and seeks to appeal an admission or a renewal order that had detained them.Hogan J held that section 19(1) ought be read as if it read ‘is or was’ suffering from a mental disorder.
The effect of this interpretation, Hogan J held, was that the Circuit Court, under section 10, may determine whether or not the patient is suffering from a mental illness at the time of the hearing of the appeal or if they were suffering from a mental illness at the time of the tribunal decision, subject to appeal under section 19 (emphasis added).
This meant that, for Ms F’s case, the Circuit Court had jurisdiction to hear whether or not the tribunal had been correct to affirm the original admission order, even though the original admission order had been replaced by a renewal order.
In effect, the Circuit Court could review the original admission order, as the court had the power to review whether or not the patient had, in the past (at the time of the tribunal decision), suffered from a mental illness.
Peart J concurred with Hogan J, but added that he would have decided the case on the basis that the renewal order simply extends the life of the admission order.
The basis for the detention of a patient, where a renewal order has been made, remains the original admission order, albeit extended.
Don’t stop me now
Dunne J in her judgment addressed the practical issues of the timeframes involved in relation to admission orders.
She stated that “it is extremely unlikely that, even with the most expeditious conduct of all of the steps required under the 2001 act, an appeal could be heard by the Circuit Court within the 21-day period during which an admission order is in force.”
On that basis, she stated that, although the 2001 act provided for a right of appeal to the Circuit Court from a decision of the Mental Health Tribunal affirming an order for the involuntary detention of a patient, if the approach of Groarke P was correct, that “right of appeal in the circumstances of the initial admission order is practically incapable of being exercised”.
She stated that Hogan J’s approach – in determining that section 19(1) of the 2001 act must be read as if the patient ‘is or was’ suffering from a mental disorder – was not surprising, given the tight timeframe in which patients could appeal under the 2001 act.
Dunne J noted that, in their submissions, the Mental Health Commission stated that such an interpretation was simply incorrect, and that counsel on behalf of Ms F stated that it had not been argued on behalf of Ms F that it was necessary to read into the section the words ‘is or was’.
Dunne J held that she could not accept Hogan J’s analysis to the effect that section 19(1) must be read as ‘is or was’ suffering from a mental disorder. She did not agree that section 28(5) prevailed over section 19(1).
Lazing on a Sunday afternoon
She adopted the approach of Charleton J in Han, stating that the focus of the 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, the tribunal affirms the admission order. If not, the tribunal revokes the admission order.
Dunne J stated that, on appeal, the focus of the Circuit Court is the same: “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, a historical review of the situation that pertained at the time of the admission.”
She held that section 28(5), which applies where a patient has been discharged, clearly provides for a historical review – as the patient has been discharged, there is no question of the admission order being revoked or affirmed. The purpose of the section is to review the detention of the discharged patient.
Dunne J addressed the issues raised by Ms F’s case by looking at the underlying purpose of the 2001 act – to provide for the independent review of the involuntary admission of patients to mental hospitals.
The means by which this was done, in the 2001 act, was to create a Mental Health Commission and to appoint Mental Health Tribunals. The decisions of the tribunal were subject to appeal to the Circuit Court. The focus of the review is on the current condition of the patient, at tribunal stage and on appeal.
Recognising that the purpose of the 2001 act was to create a significant protection for patients subject to involuntary detention, the decision contemplates the tight time-frame involved: when an individual has been admitted into care, should they never have a ‘meaningful appeal’ of the original admission order to the Circuit Court?
Having regard to the particular facts of the case, Dunne J noted the time within which a renewal order is made, post-admission order.
In an analysis that carefully considers the practical implications of holding that any appeal from the initial admission order is moot, if a renewal order has since been made, Dunne J held that “to interpret a renewal order as being a separate and distinct order” would be at variance with the underlying policy of the 2001 act.
Dunne J endorsed the approach of Peart J in the Court of Appeal, holding that the original admission order is extended by a renewal order. Accordingly, she found that when the matter came before the Circuit Court, the matter was not moot, and the validity of the admission order could have been considered by the court.
Hammer to fall
This decision brings clarity to the practicalities of advancing appeals of decisions of Mental Health Tribunals to affirm or renew admission orders.
Practitioners should note that it has now definitively been stated that a patient may appeal an original admission order, regardless of whether or not a renewal order has or has not been brought.
It is clear from the judgment that Dunne J recognised the practical implications of deciding that an appeal against an admission order becomes moot where a renewal order has been brought.
The right of patients to appeal against admission orders has been carefully clarified, and the position in relation to renewal orders has been clearly stated: renewal orders merely extend the life of admission orders.
It is to be welcomed that the right of appeal of patients of the initial orders governing their detention has been given real and practical effect.
Note: all references in the IF Supreme Court judgment are to the 2001 act, as it was issued before the amendments made by the 2018 act. The amendments were of no material consequence to the issues raised in the judgment, as noted by Dunne J, at paragraph 3.
The author wishes to thank Niall Nolan BL for reviewing this article.