AM v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] IESC 3
• Docket Number: [Record No. 124/2017],[S.C. No. 124 of 2017]
• Court: Supreme Court
• Date: 29 January 2019

[2019] IESC 3

THE SUPREME COURT

MacMenamin J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Record No. 124/2017]

BETWEEN:

HEALTH SERVICE EXECUTIVE

APPELLANT

AND

AM

RESPONDENT

Wardship jurisdiction – Involuntary detention – Mental health grounds – Respondent seeking to have the appellant made a ward of court – Whether the respondent could have the appellant involuntarily detained on mental health grounds by way of wardship procedure and by the invocation of the inherent jurisdiction of the High Court

Facts: The respondent, the Health Service executive (HSE), on the 7th November, 2016, made an ex parte application to the High Court (Kelly P), concerning the appellant. The appellant had previously been sentenced to a lengthy term of imprisonment. Following his conviction and sentence he was transferred to the Central Mental Hospital (CMH). The evidence adduced before the High Court in the ex parte application was that, because of his mental condition, the appellant would pose a serious threat, both to his own life and welfare, and the life and welfare of others. The HSE wished to have the appellant made a ward of court, and on that basis asked the Court to make orders for his future detention in the CMH. A series of interlocutory hearings followed the ex parte application. At subsequent interlocutory hearings, and, ultimately, at a full hearing, the appellant submitted that a wardship order should not be made. He submitted that an order for his continued detention could only be made pursuant to the Mental Health Acts 1945 to 2001 (the 2001 Act). The appellant 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 the appellant a ward of court, and, in the exercise of that jurisdiction, ordered his detention at the CMH. The Supreme Court granted leave for an appeal directly to the Supreme Court. The issue identified for determination was 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 satisfied the criteria for a detention order under the 2001 Act.

Held by MacMenamin J that the Court’s wardship jurisdiction is sufficiently broad to allow it to have been invoked in this case. MacMenamin J held that the appellant was of “unsound mind” and that he was required to be in the CMH. MacMenamin J held that the President of the High Court engaged in a lawful exercise of wardship jurisdiction. MacMenamin J held that, in the circumstances, the orders made were necessary and appropriate to vindicate the rights of the appellant and also to protect the rights of the public. MacMenamin J held that there was no error in the High Court judgment.

MacMenamin J held that he would dismiss the appeal.

Appeal dismissed.

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

Introduction

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...