AM -v- Health Service Executive, [2019] IESC 3 (2019)

Docket Number:124/17
Party Name:AM, Health Service Executive

THE SUPREME COURT[Record No. 124/2017]

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.




Judgment of Mr. Justice John MacMenamin dated the 29th day of January 2019


  1. On the 7th November, 2016, counsel for the HSE made an ex parte application to the High Court (Kelly P.), concerning the appellant, AM. The appellant had previously been sentenced to a lengthy term of imprisonment for crimes described later in this judgment. Following his conviction and sentence he was transferred to the Central Mental Hospital. The evidence adduced before the High Court in the ex parte application was that, because of his mental condition, AM would pose a serious threat, both to his own life and welfare, and the life and welfare of others. The HSE wished to have AM made a ward of court, and on that basis asked the Court to make orders for his future detention in the Central Mental Hospital. A series of interlocutory hearings followed the ex parte application. At subsequent interlocutory hearings, and, ultimately, at a full hearing, counsel for AM submitted that a wardship order should not be made concerning his client. He submitted that an order for AM’s continued detention could only be made pursuant to the Mental Health Acts, 1945 to 2001 (hereinafter referred to as “the 2001 Act”). Counsel for AM submitted that the 2001 Act contained statutory safeguards not provided for in wardship applications. His case was that, by making a wardship application, the HSE was attempting to “circumvent” the 2001 Act. Kelly P. acceded to the HSE’s applications on an interlocutory basis. Later in a comprehensive judgment delivered on the 27th March, 2017, after the President set out his reasons on the facts and law for making AM a ward of court, and, in the exercise of that jurisdiction, ordered his detention at the Central Mental Hospital (“CMH”) [2017] IEHC 184.

  2. There appears to be no issue that, on the facts, AM could have been the subject of an application under the 2001 Act. But the evidence before the High Court was that the HSE could not comply with the complex procedures laid down in that Act for admission to the CMH. Wardship applications, generally, concern the welfare of the person concerned, and, frequently, also orders for the care of property held by that person. The question is whether, in the circumstances described in this judgment, the President erred in making AM a ward of court, and in the exercise of the power ordering his detention?

  3. The issues which arise in this appeal are significant in this, and, potentially, other cases. For this reason, this Court granted leave for an appeal directly to this Court. ([2017] IESCDET 126). The issue identified for determination is whether the HSE, or any other person who seeks to have a person involuntarily detained on mental health grounds, can do so by way of wardship procedure and by the invocation of the inherent jurisdiction of the High Court, notwithstanding the fact that the appellant satisfies the criteria for a detention order under the Mental Health Act, 2001 (“the 2001 Act”).

  4. The history of the first legislative “code”, which is now briefly outlined may for context, for convenience, be referred to as “the wardship jurisdiction” of the courts. The second “code” is the Mental Health Act, 2001 (“the 2001 Act”), and its predecessors. The wardship jurisdiction is then considered in more detail. The judgment then considers the past and more recent jurisprudence of the courts on wardship. The High Court judgment is then assessed by reference to the law as set out. In a sense, it might be said that one of the key questions in this case is as to the extent, aspects of the two jurisdictions might occasionally “intersect”, while at the same time being separate codes of law.

    Wardship Generally

  5. The wardship of the Court’s jurisdiction can be traced back to medieval times. It was first outlined in an English statute, “De Prerogativa Regis” 17 Edw. Sr.1 cc. 9 and 10, which identified prerogatives of the King. At that time, the jurisdiction was seen as the delegated exercise of a “parens patriae” power, originally vested in the Crown as part of the Royal prerogative. (See, generally, Kevin Costello, ‘The Expulsion of Prerogative Doctrine from Irish Law’ (1997) 32(1) The Irish Jurist 145, Laura Cahalane, ‘The Prerogative and its Survival in Ireland’ (2010) 1(2) IJLS 1).

  6. Subsequently, by a series of enactments, wardship jurisdiction became vested in the Lord Chancellor of Ireland. The titles of these regulatory Acts emphasise the stigma which then attached to mental incapacity. The Acts were entitled the Lunacy Regulation (Ireland) Act, 1871 (“the 1871 Act”) and the Lunacy (Ireland) Act, 1901. Later, by way of s.69 of the Government of Ireland Act, 1920 (“the 1920 Act”), and an order made thereunder (S.I. 1803 of 1921), and then by virtue of s.19(1) of the Courts of Justice Act, 1924 (“the 1924 Act”), the jurisdiction was transferred to the Chief Justice of Ireland, and thereafter, by virtue of s.9(1) of the Courts of Justice Act, 1936 (“the 1936 Act”), and later by s.9(1) of the Courts (Supplemental Provisions) Act, 1961 (“the 1961 Act”) to the President of the High Court. The President of the High Court is empowered to assign another judge of the High Court to perform these functions. (See Anne-Marie O’Neill, Wards of Court in Ireland (First Law Limited 2004) Chapter 1, paras. 1.7-1.8, and, more generally, Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Thomson Reuters (Professional) Ireland Limited 2009). But, as decided in In re a Ward of Court [1996] 2 I.R. 79, in fact, the exercise of this power is subject to the provisions of the Constitution itself. In that judgment, this Court was referring, in particular, to Article 40.3.2 of the Constitution, which sets out the duty of the Court to protect, as best it may, from unjust attack, and in the case of injustice done, to vindicate the life and person of every citizen. The fact that this power has a constitutional source does not prevent the enactment or application of legislation which can regulate the manner in which the power is exercised.

    The Legislative Background

  7. Writing extra-judicially in 2009, McCracken J. described the general mental health area as being the “poor relation” of the health services. He described the “appalling fact” that it had it taken five years for the Mental Health Act, 2001 Act to be brought into force in 2006. This legislation contained substantial safeguards for persons involuntarily detained. The 2001 Act eventually came into effect, at about the same time as the Criminal Law (Insanity) Act. 2006 which, as McCracken J. pointed out, had itself been pending as a Bill since 2002. (See Whelan, cited at para. 9 above: “Foreword”). The road to legislative reform in this area has been a long one. The enactment of the Assisted Decision-Making (Capacity) Act, 2015 marks a further step. Ultimately, the wardship jurisdiction is to be phased out. But, this still-current legislation forms a large part of the background to this appeal.

    Wardship Generally

  8. An order making a person a ward of court has real consequences. It can deprive a person of the power to make many of the choices which are fundamental and integral to day-to-day life. But such orders were sometimes over-broad in their effect and disproportionate in their scope. Nowadays the HSE makes a significant number of such applications, often the High Court. (See Mary Carolan, ‘More than 2,600 judged incapable protected as Wards of Court’, The Irish Times (Dublin, 16 January 2016)). But, to date, the HSE has not issued a code of practice or protocol which might inform next of kin, health professionals, legal advisors, or the public at large as to the procedures and criteria which it will adopt in any given case. One possible reason for this is that the HSE wishes to maintain flexibility. Perhaps there may be a concern that certain provisions of the Mental Health Act, 2001, including those which govern admission to the CMH, are unwieldy and over-bureaucratic. What occurred in this case illustrates some of the difficulty. But administrative difficulties cannot abrogate legal entitlements. This appeal raises the question of the relationship between the two legal codes involved. It raises the question as to the lawful course of action when a person simultaneously falls within the criteria necessary to be made a ward of court, and also come within that category of persons who may be the subject of an involuntarily detention order under the Mental Health Acts. Later in the judgment, wardship is considered in more detail.

    The Purposes of, and Relationship between, the Two Jurisdictions

  9. Orders in wardship and those made under the Mental Health Act, 2001, generally, have different purposes. Ward of court applications are broadly intended to protect persons who lack the capacity to make decisions regarding their own welfare. By contrast, the provisions of the Mental Health Act, 2001 outline the circumstances in which a person suffering from a mental disorder may be the subject of an involuntary detention order. The 2001 Act outlines safeguards prior, and subsequent to, the making of such an order. These are necessary to vindicate rights protected by the Constitution and the European Convention on Human Rights (“the ECHR”; “the Convention”).

  10. But, in exercising the wardship jurisdiction, the courts nowadays adopt and apply a range of additional procedures in order to ensure that wardship procedures also protect the rights in question. In general, the two statutory codes do not overlap. They are distinct. This distinction is one intended by the Oireachtas, as expressed in the enactments considered later. But there may also be occasions when there is a need for continuity and coherence in legislation protecting vulnerable people. As...

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