W.Q. (applicant) v. The Mental Health Commission, The Director of the Central Mental Hospital, The Mental Health Tribunal and Dr Damian Mohan (respondents)
Criminal law - Habeas corpus - Detention - Whether applicant lawfully detained in mental institution - Whether subsequent renewal orders were invalid rendering the applicant's detention unlawful - Whether defects in an order could be remedied by subsequent affirmation of the order by the Mental Health Tribunal - Whether failure to challenge lawfulness of applicant's detention denied applicant competence to rely on defects subsequently - Jurisdiction of Mental Health Tribunal - Transitional provisions between Mental Treatment Act 1945 and Mental Health Act 2001. Mental Health Act 2001 (No. 25), ss. 15, 17, 17(1)(b), 72(4) - Mental Treatment Act 1945 (No.19), ss. 184, 207, 208.
The High Court (Mr Justice O'Neill); judgment delivered on May 15th, 2007
An order containing a flaw which undermined or disregarded the statutory basis for lawful detention as provided by the Mental Health Act 2001 cannot be excused by the Mental Health Tribunal. Only those failures of compliance which are of an insubstantial nature and do not cause injustice can be excused by the tribunal. Thus an affirmation of a fundamentally defective renewal order by a tribunal is invalid. However, the scheme of detention provided for in the 2001 Act is based upon the creation of short periods each disconnected from the other, so that on every renewal the detention must be fully justified.
It is incumbent upon a person in respect of whom an order has been made to make such complaint in relation to their detention to the tribunal when it convenes. In this case, the defects in previous orders are neither cured, excused nor ignored. However in the process of events, the applicant lost competence to place reliance on previous defects to challenge the validity of a subsequent valid order.
The High Court so held in finding that the detention of the applicant was a lawful detention.
Feichin McDonagh, SC, with Niall Nolan, BL, for the applicant; Cian Ferriter, BL, for the first named respondent; Felix McEnroy, SC, with Mary Phelan, BL, for the second and fourth named respondents; Paul Anthony McDermott, BL, for the third named respondent.
Mr Justice O'Neill commenced his judgment by setting out the facts. The applicant had for many years suffered from serious mental illness. He was detained in the Central Mental Hospital on foot of an order made pursuant to s. 15 of the 2001 Act. On April 20th, 2007, an application was made on behalf of the applicant pursuant to Article 40.4 of the Constitution for an inquiry into the legality of the applicant's detention. Mr Justice O'Neill directed that such an inquiry take place on April 24th, 2007, and ordered the second-named respondent certify in writing the grounds upon which the applicant was detained. By a certificate made by the second-named respondent dated April 24th, 2007, it was certified that the applicant was detained by the second-named respondent as Clinical Director of the Central Mental Hospital pursuant to s. 15 of the 2001 Act on foot of a renewal order for his detention made on March 28th, 2007, which said order was affirmed by a decision of the Mental Health Tribunal dated April 16th, 2007.
The applicant was originally detained by order of the Minister for Health made in September, 1986, pursuant to s. 207 of the Mental Treatment Act, 1945. The applicant was detained at the Central Mental Hospital pursuant to this order until July 3rd, 2006. The applicant was in or about 2003 referred to the Tipperary Mental Health Services by Dr O'Leary because he was from the catchment area of South Tipperary Mental Health Services.
Because the applicant had been in detention in the Central Mental Hospital since 1986 he was not under the care of a consultant psychiatrist outside of the Central Mental Hospital and this was the reason for his referral. A Dr Cussan, a psychiatrist was invited to attend a case conference at the Central Mental Hospital in relation to the applicant in November, 2003. Thereafter a Dr O'Leary, a consultant psychiatrist from the South Tipperary Mental Health Services, was requested to attend at the Central Mental Hospital to review the applicant on May 3rd, 2006. Dr O'Leary examined the applicant there and reached a conclusion that he was suffering from very serious mental illness. Her conclusion included a finding that the applicant lacked the ability to sustain his treatment outside the supervised environment of the Central Mental Hospital and that he would be at risk of non-compliance with medication, leading to a significant relapse of his mental illness increasing his risk to himself and to others were he to move to a less severe environment. After this examination, the applicant was discharged from the Central Mental Hospital and transferred to St Luke's Hospital in Clonmel, Co Tipperary, on July 3rd, 2006, under the provisions of s. 184 of the 1945 Act. Because the applicant continued to require specialist treatment at the Central Mental Hospital, Dr O'Leary completed a transfer form under s.208 of the 1945 Act and on foot of this, the applicant was transferred back to the Central Mental Hospital in July, 2006.
Mr Justice O' Neill said that on November 1st, 2006, the Mental Health Act, 2001, came into force, and the applicant's continued detention thereafter fell to be regulated under the relevant provisions of this Act. The applicant's detention was notified by the second-named respondent to the Mental Health Commission on November 1st, 2006. The detention of the applicant pursuant to s. 184 of the Mental Treatment Act 1945 was for a period of six months which was due to expire on January 2nd, 2007. On that date Dr O'Leary reviewed the applicant and concluded that the applicant's condition was essentially unchanged. Accordingly, Dr O'Leary completed form 7 of the Mental Health Commission's forms in accordance with s. 15 of the 2001 Act renewing the detention of the applicant for a period of three months from that date. That renewal order was notified to the Mental Health Commission who pursuant to the provisions of the Mental Health Act 2001 appointed Dr. Malcolm Garland an independent consultant psychiatrist to examine and report upon the applicant. The Mental Health Commission also convened a Mental Health Tribunal in respect of the applicant's detention on January 22nd, 2007.
The tribunal concluded that the applicant was continuing to suffer from a mental disorder and it affirmed the renewal order made by Dr O'Leary on January 2nd, 2007. At the hearing of this tribunal the applicant was represented by a legal representative, as required by s. 17(1)(b) of the 2001 Act. Coming towards the end of the period of three month's detention on March 28th, 2007, the applicant's detention was further renewed by Dr Mohan, pursuant to s. 15 of the 2001 Act, for a period of six months. The applicant was again examined by Dr Garland.
The Mental Health Commission convened a Mental Health Tribunal pursuant to s. 17 of the 2001 Act for April 16th, 2007.
At the hearing before the tribunal on that date, the applicant was legally represented. In the course of the hearing a submission was made to the tribunal that the applicant's detention was unlawful because no tribunal had been convened to review the applicant's detention prior to the making of the renewal order of January 3rd, 2007, which failure was a breach of the applicant's legal entitlements pursuant to s. 72(4) of the Act of 2001, and as a consequence of which, subsequent renewal orders were invalid rendering the applicant's detention unlawful. The tribunal rejected that submission on the ground that at the previous Mental Health Tribunal hearing on January 22nd, 2007, no challenge of that kind was made to the lawfulness of the applicant's detention, and that any defect in the order which may have existed was remedied by the subsequent affirmation of that order by the Mental Health Tribunal on January 22nd, 2007. The tribunal on April 16th, 2007, was satisfied that the applicant was suffering from a mental disorder and that there was compliance with the relevant provisions of the Act of 2001 and accordingly affirmed the renewal order made on March 28th, 2007, which was as certified by the second-named respondent the legal basis of the applicant's detention, now challenged by the applicant.
Mr Justice O'Neill having set out the statutory provisions relevant to the applicant, stated that from July 3rd, 2006, the applicant's detention was altered to that of a detention pursuant to s. 184 of the Act of 1945, namely that of temporary chargeable patient and this was no doubt done as a bone fide attempt to regularise the applicant's detention. However, a necessary condition of such a detention was that the authorised medical officer certify inter alia that the person in question was suffering from mental illness and required not more than six months suitable treatment for his recovery. Mr Justice O'Neill stated that it was perfectly clear that at all material times it simply could not have been envisaged that the applicant's recovery could have been achieved in the six-month prescribed period.That being so, Mr Justice O'Neill was satisfied that the order made on July 3rd, 2006, under the provisions of s. 184 of the 1945 Act was invalid in ab initio. As the plaintiff's detention as of November 1st, 2006, when the Act of 2001 came into force, was unlawful, the transitional provisions contained in s. 72 of the Act of 2001 were not engaged, it being necessary for the purposes of effecting a lawful transition under s. 72, that the detention as of November 3rd, 2006, was a lawful one. It was common case that notwithstanding the purported transition of the applicant's detention pursuant to s. 72 of the 2001 Act, a Mental Health Tribunal was not convened to review that detention prior to the expiration of the six-month period of detention on January 2nd, 2007, as would have been required by sub-s 4 of s. 72 of the 2001 Act. The Renewal Order of January 2nd, 2001, which purported to renew the detention of the applicant pursuant to s. 15(2) of the Act of 2001, was made by Dr O'Leary.
The applicant complained that Dr O'Leary had no power to make this order because the power to make a Renewal Order under s. 15(2) is restricted to the "Consultant psychiatrist responsible for the care and treatment of the patient concerned". In Mr Justice O'Neill's opinion, a psychiatrist not attached to the approved centre where the person was detained and not involved in the care and treatment of the patient concerned but who was brought in for the purposes of review, could not exercise the power of renewal contained in s. 15(2) and s. 15(3). Thus Dr O'Leary did not have the power to make the Renewal Order on January 2nd, 2007. A failure to comply with the legislative provisions vitiated the lawfulness of a detention based upon a Renewal Order signed by someone who lacked the power to make that order.
Mr Justice O'Neill stated that as of January 2nd, 2007, there were three fundamental flaws in the legal regime purporting to lawfully detain the applicant.
The first of these was the invalidity of the s. 184 order made on July 3rd, 2006, the second was the failure to have convened a Mental Health Tribunal to have reviewed the detention of the applicant after November 1st, 2006, and before January 2nd, 2007, and the third was the invalidity of the purported Renewal Order of January 2nd, 2007. It could be said that in light of the invalidity of the s. 184 order, with the result that the transitional provisions in s. 72 of the 2001 Act, were not engaged, that the failure to have convened a Mental Health Tribunal before January 2nd, 2007, was immaterial. Whether that be so or not, it was clear that the detention of the applicant based upon the purported Renewal Order of January 2nd, 2007, was unlawful. This was because the detention up to January 2nd, 2007, was unlawful and in Mr Justice O'Neill's opinion a Renewal Order pursuant to s. 15(2), in the statutory scheme provided in the Act of 2001, could only follow an Admission Order made pursuant to s. 14 of the 2001 Act. Where a person is detained validly pursuant to a s. 184 order, by virtue of s. 72 of the Act of 2001, after November 1st, 2006, that person is regarded as having been involuntary admitted. Thus where there is a valid transition pursuant to s. 72(1) a Renewal Order under s. 15(2) can be made. It followed that if there was no valid s. 184 order, that was akin to the absence of a valid s. 14 Admission Order and hence the necessary statutory basis for a Renewal Order under s. 15(2) was excluded.
Thus, in the opinion of Mr Justice O'Neill, the Renewal Order of January 2nd, 2007, was fatally flawed for two reasons, namely the absence of the necessary statutory basis for it because of the invalidly of the s. 184 order and the fact that it was made by a psychiatrist not entitled to make it. Because the transitional provisions in s. 72 were not engaged because of the invalidity of the s. 184 order, in Mr Justice O'Neill's view the failure to have convened a Mental Health Tribunal was immaterial in the sense that it did not affect the lawfulness or unlawfulness of the applicant's detention.
After the making of the purported Renewal Order on January 2nd, 2007, the Mental Health Commission convened a Mental Health Tribunal to review the applicant's detention pursuant to that purported Renewal Order. This Mental Health Tribunal met on January 22nd, 2007, and affirmed the Renewal Order of January 2nd, 2007. The applicant was represented by a legal representative. No complaint was made to this tribunal about any of the foregoing matters concerning the legality of the applicant's detention. Thereafter on March 28th, 2007, a Renewal Order for a period of six months pursuant to s. 15(3) of the 2001 Act, was made by Dr Mohan. The validity of that order was challenged on the basis that a necessary prerequisite for the making of a s. 15(3) Renewal Order is the existence of a valid s. 15(2) order immediately prior to the making of the s. 15(3) order. In this regard it was submitted by counsel for the applicant that having regard to the fact that the detention period in the order of March 28th, 2007, was for six months, this could only arise after a period of three months detention as contained in a valid s. 15(2) order and if the s. 15(2) order was invalid then there was no legal basis for prescribing a period of six months detention under s. 15(3). Counsel for the respondents submitted that even if there was any flaw in the legality of the applicant's detention prior to January 3rd, 2007, that the safeguards in the 2001 Act "kicked in" and the applicant had the benefit of the safeguards contained in s. 18, whereby his detention was reviewed by a Mental Health Tribunal twice, and on both occasions these two separate tribunals affirmed the two Renewal Orders in question.
It was submitted that a Mental Health Tribunal was mandated to and could review compliance with inter alia s. 15 of the 2001 Act, and where any non-compliance was of a procedural nature, as it was submitted, was the situation in this case, and if the tribunal was satisfied no injustice was done by it, it had jurisdiction to affirm the Order, as was done.
It was submitted that exactly the same safeguards were applied on each occasion of a review of a Detention Order, be it an Admission Order or a Renewal Order, there being no continuum of detention from one order to the next. It was further submitted that defects in Renewal Orders not brought to the attention of a Mental Health Tribunal or where appropriate this court, in a timely fashion, cannot be relied upon subsequently to challenge the validity of later Renewal Orders.
Mr Justice O'Neill regarded the first issue which arose was whether or not a Mental Health Tribunal would have had jurisdiction under s. 18 to "cure" any of the effects as discussed above in the lawfulness of the detention of the applicant pursuant to the Renewal Order of January 2nd, 2007. A tribunal must consider whether or not there has been compliance with relevant sections of the Act of 2001.
The first thing a tribunal must consider is whether the patient is suffering from a mental disorder and it must be satisfied that that a patient is so suffering.
Secondly, a tribunal must consider whether or not there has been compliance with sections 9, 10, 12, 14, 15 and 16. In this case the relevant section to be considered was s. 15. It is to be noted that in regard to compliance the tribunal is confined to considering compliance with the relevant sections.
Thus as was held by Clarke J. in the J.H. case: "The tribunal does not have a jurisdiction to consider the procedural validity of a person's previous detention under the 1945 Act . . . "
In the opinion of Mr Justice O'Neill the best interests of a person suffering from a mental disorder were secured by a faithful observance of and compliance with the statutory safeguards put into the 2001 Act, by the Oireachtas. That together with the restriction in s. 18(1)(a) (ii) mean that only those failures of compliance which are of an insubstantial nature and do not cause injustice can be excused by a Mental Health Tribunal. Therefore it followed that there must be in existence either an Admission Order or Renewal Order, where appropriate, which in substance is valid. An order which contains a flaw which undermines, or disregards the statutory basis for lawful detention as provided for in the 2001 Act, could not be excused under s. 18. Therefore, the absence of the necessary valid preceding order or the making of an order by the wrong person are defects which took the purported order outside or beyond the statutory scheme provided and could not be cured under s. 18. It was clear that what was envisaged by the Oireachtas, was that a Mental Health Tribunal would have the power to excuse minor errors of an insubstantial nature, but no more.
Mr Justice O'Neill was of the view that the tribunal which met on January 22nd, 2007, could not have excused the making of the order by Dr O'Leary. Of the three defects affecting the lawful detention of the applicant existing at that time, this was the only one which the tribunal would appear to have has a jurisdiction to consider. The tribunal was not entitled to consider compliance with s. 184 and the failure to have convened a Mental Health Tribunal between November 1st, 2006, and January 2nd, 2007, as was required by s. 17(1)(a), was also a matter which was outside the scope of their consideration because s. 17 is not listed amongst the sections in respect of which a Mental Health Tribunal is required to consider compliance.
Mr Justice O'Neill was satisfied having regard to the jurisdiction which the Mental Health Tribunal had on January 22nd, 2007, its affirmation of the Renewal Order, having regard to the fundamental defect in it, by reason of it having been made by Dr O'Leary, was invalid. As the order of January 2nd, 2007, was invalid it followed that the necessary statutory basis for the making of the order of March 28th, 2007, was absent. A s. 15(3) order was clearly intended to follow a s. 15(2) order. It could not have an existence on its own. As the s. 15(2) order of January 2nd, 2007, was invalid, it could be said that the s. 15(3) order made on March 28th, 2007, was consequentially invalid. However, Mr Justice O'Neill stated that in his opinion that consequence did not follow for the following reasons.
The scheme of detention provided for the in the 2001 Act was based upon the creation of short periods of detention each disconnected from the other, so that on every renewal the detention had to be fully justified. This was achieved by the Admission Order in the first instance followed then by Renewal Orders under s. 15. Thus a patient who required long-term treatment for a mental disorder will have made in respect of him, in all probability, several Renewal Orders over many years. A finding of invalidity of a Renewal Order, which in itself was valid in all respects, because of a defect in a previous Renewal Order or Admission Order, was a wholly undesirable eventuality, and in all probability not in the best interests of persons suffering from a mental disorder.
The Act of 2001 provided for the convening of a Mental Health Tribunal following the making of an Admission Order and every Renewal Order, and the Mental Health Tribunal must, pursuant to s. 18(2), make its decision within 21 days of the making of the Admission Order or Renewal Order as the case may.
Having regard to the foregoing, it was incumbent upon a person in respect of whom an Admission Order or a Renewal Order has been made, to make such complaint in relation to their detention arising out of the making of an Admission Order or a Renewal Order, and in respect of which a Mental Health Tribunal has a jurisdiction, to that tribunal when it convenes.
Mr Justice O'Neill stated that in this case the facts pertinent to the lawfulness of the applicant's detention were apparent at all times. Whilst it may be the case that the tribunal which convened on January 22nd, 2007, did not have jurisdiction to deal with procedural defects in the s. 184 order or to consider compliance with s. 17(1)(a), it undoubtedly had jurisdiction to consider compliance with s. 15(2), and in this regard the complaint which was now made in the proceedings concerning the making of the Order by Dr O'Leary should have been made then. Notwithstanding that fact that a tribunal did not have a jurisdiction to deal with compliance with s. 17 or defects in the s. 184 order, the applicant's grievance in regard to these, being readily apparent at the time, should have been brought to the attention of this court at that time by way of an application for an enquiry under Article 40.4 of the Constitution, as had now been done. There could not be a reliance upon defects, even substantial defects in earlier Admission or Renewal Orders, where these defects could have been complained of in a tribunal, or brought to the attention of this court on an Article 40.4 enquiry, but were not, to challenge the validity of a Renewal Order which in itself is valid.
Mr Justice O'Neill said that in the instant case the defects in the s. 184 order or the defects in the Renewal Order of January 2nd, 2007, were neither cured, excused or ignored. What had occurred was that in the process of events, the applicant had lost competence to lay claim to, or place reliance on the defects to challenge the validity of the Renewal Order of March 28th, 2007. In that regard the "domino effect" much feared by the respondents was avoided. Mr Justice O'Neill stated that the principle that a legal or statutory provision which was subsequently found to be invalid may be sheltered from nullification and thus accorded the continuance of legal force and effect, where its invalidity was not asserted at the appropriate time, and where those affected by it and concerned with it, in good faith, have treated it as valid and acted accordingly, was now well established in our jurisprudence following the judgments of the Supreme Court in the case of A. v. the Governor of Arbour Hill Prison (unreported, July 12th, 2006).
In the opinion of Mr Justice O'Neill the above conclusion was entirely consistent with that principle. Accordingly, Mr Justice O'Neill concluded that the Renewal Order of March 28th, 2007 was a valid order, and hence the detention of the applicant on foot of it was a lawful detention.
Solicitors: Roger Greene & Sons (Dublin) for the applicant; Arthur Cox (Dublin) for the first and third respondents; BCM Hanby Wallace (Dublin) for the second and fourth respondents.
• Kieran O'Callaghan, barrister