An inquiry pursuant to Article 40.4.2 of the Constitution. Clive Gooden v St. Otteran's Hospital

• Jurisdiction: Ireland
• Judgment Date: 21 February 2001
• Date: 21 February 2001
• Docket Number: [S.C. No. 334 of
• Court: Supreme Court

Supreme Court

[S.C. No. 334 of 2000]

Gooden v. St. Otteran's Hospital (2001)

In the matter of an inquiry pursuant to Article 40.4.2 of the Constitution. Clive Gooden

Applicant

and

St. Otteran's Hospital

Respondent

Cases mentioned in this report:-

S.C. v. Smith (Unreported, High Court, Budd J., 31st July, 1995).

Croke v. Smith (No. 2) [1998] 1 I.R. 101.

In re Philip Clarke [1950] I.R. 235; (1949) 85 I.L.T.R. 119.

In re D. [1987] I.R. 449.

Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98; [1999] 1 I.L.R.M. 46.

Doyle v. Commissioner of An Garda Síochána [1991] 1 I.R. 249; [1998] 2 I.L.R.M. 523; [1998] 1 I.L.R.M. 229.

Hayden's Case (1534) 3 Co. Rep. 7.

Nestor v. Murphy [1979] I.R. 326.

Pepper v. Hart [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 43; [1993] I.C.R. 291.

R. v. Judge of the City of London Court (No. 2) [1892] 1 Q.B. 273.

River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743.

R.T. v. Director of the Central Mental Hospital [1995] 2 I.R. 65; [1995] 2 I.L.R.M. 354.

Constitution - Personal rights - Liberty - Inquiry involving examination of grounds of detention - Person of unsound mind - Voluntary patient - Written notice of discharge - Whether voluntary patient has absolute entitlement to leave institution on giving written notice - Temporary chargeable patient - Whether right to second opinion - Whether detention legal - Mental Treatment Act 1945 (No. 19), ss. 184, 194 and 195 - Mental Treatment Act 1953 (No. 35), s. 5 - Constitution of Ireland 1937, Article 40.4.

Statute - Interpretation - Literal interpretation - Purposive interpretation - Legislation of paternal character - Intention of legislature clear - Whether literal interpretation correct - Whether purposive interpretation appropriate method in circumstances - Words and phrases - "Convey" - Second opinion - Whether all patients entitled to second opinion - Whether second opinion arose only where patient moved to institution - Whether possible to apply different canons of interpretation to different provisions of same statute - Mental Treatment Act 1945 (No. 19), ss. 184, 194 and 195 - Mental Treatment Act 1953 (No. 35), s. 5.

Appeal from the High Court

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of McGuinness J., infra.

On the 30th November, 2000, on the application of the applicant for an inquiry into his detention pursuant to Article 40.4 of the Constitution, the High Court made an order requiring the respondent to certify in writing the grounds of the applicant's detention. The High Court (Kelly J.) on the 14th December, 2000, held that the applicant was being detained in accordance with law.

The applicant appealed by notice of appeal dated the 20th December, 2000. The appeal came on for hearing before the Supreme Court (McGuinness, Hardiman and Geoghegan JJ.) on the 17th January, 2001.

Section 194 of the Mental Treatment Act 1945 provides that:-

"a voluntary patient may give written notice that he wishes to leave the institution not earlier than seventy-two hours from the giving of the notice, and he shall be entitled and shall be allowed to leave the institution on or at any time after the expiration of the said seventy-two hours."

Section 184 of the Act of 1945 provides for the making of a reception order for the purposes of having a person received and detained as a temporary chargeable patient in an approved institution.

Section 5 of the Mental Treatment Act 1953 provides in relevant part:-

"(1) Where, in the case of an application under section 184 or section 185 of the Principal Act, a medical certificate under the section has been given, the following provisions shall have effect:-

• (a) the applicant or any person authorised by him may, not later than seven days after the date of the examination, take the person to whom the application relates and convey him to the institution in which it is desired to have him received and detained …

  • (3) Notwithstanding subsection (1) of this section, where a medical certificate has been given under section 184 of the Principal Act and it is proposed to exercise the power conferred by paragraph (a)of that subsection

    • (i) the applicant shall, before exercising the said power, inform the person to whom the application relates of the nature of the medical certificate and of the fact that such person may request a second medical examination, and

    • (ii) if such request is made, the said power shall not be exercised unless such second examination has been made and the registered medical practitioner who made it has signified in writing that he agrees with the medical certificate."

The applicant, who had been admitted as a voluntary patient to the respondent hospital, gave written notice of his wish to be discharged. The medical evidence was that the applicant remained seriously ill and not fit to be discharged from hospital. The hospital authorities sought to have the applicant admitted to hospital as a temporary chargeable patient under s. 184 of the Act of 1945. The application for the reception order was made by the local superintendent community welfare officer. The admitting doctor arranged for a second opinion to be carried out on the applicant.

The applicant was also given a leaflet which stated that he had certain rights of appeal and that these and other rights would be explained to him by his doctor.

The applicant argued that as a voluntary patient, since he had given written notice of his wish to discharged, under s. 194 of the Act of 1945 he had an absolute right to be discharged and physically released at the expiry of the 72 hour period. It was also argued that the leaflet given to him did not comply with the requirements of s. 5 of the Act of 1953 as it did not clearly inform him of his right to seek a second opinion. The second opinion requested by the admitting doctor did not satisfy this requirement. It was further argued that the community welfare officer was not a proper person to make the application for the reception order.

The High Court (Kelly J.) held that the applicant was in lawful custody and that a reception order could be made in respect of a voluntary patient who had given written notice of his wish to be released. He also held that the requirements of s. 5(3) of the Act of 1953 was governed by s. 5(1) of that Act and only applied where it was intended to "convey" the person to the mental institution.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (McGuinness, Hardiman and Geoghegan JJ.), in dismissing the appeal, 1, that a reception order under s. 184 of the Act of 1945 could be made in respect of a voluntary patient who had previously given written notice requesting his release. A voluntary patient who had given the 72 hour notice of his discharge under s. 194 did not have an absolute right to be discharged and physically released at or before the expiry of that period.

In re D. [1987] I.R. 449 considered.

2. That a purposive construction should be taken in interpreting s. 194 of the Act of 1945. It was correct to consider the purpose of the Act as a whole, notwithstanding that the wording of s. 194 was clear and unambiguous. A reception order could be made where a voluntary patient remained sufficiently ill to render his or her discharge likely to be harmful.

Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98 followed.

3. That a literal construction should be taken to interpreting s. 5 of the Act of 1953. There had not been compliance with s. 5 as the applicant had not been informed of his right to request a second opinion. The requirements of s. 5 did not arise where the patient was already detained in hospital. The word "convey" had to be given its literal meaning and implied movement from one place to another. The right to a second opinion applied only where a person was being brought from elsewhere to a mental institution.

Per Hardiman J.: That the use of two different techniques of construction was justified in the context of legislation of a paternal character. Such an approach would not necessarily be helpful in the construction of any statutory power to detain in any other context.

Cur. adv. vult.

McGuinness J. 21st February, 2001

This appeal concerns an inquiry pursuant to the provisions of Article 40 of the Constitution into the legality of the detention of the applicant at St. Otteran's Psychiatric Hospital in Waterford.

Factual background

The applicant was born in Huddersfield, England, on the 1st May, 1966. His ethnic background is Afro-Caribbean. He states in an affidavit sworn on the 13th June, 2000, that he moved with his parents to Canada at the age of nine and lived there for some 25 years, a period which would cover his entire lifetime. However it appears from his medical history that he also lived as an adult in England and spent a period of one year in a psychiatric hospital there. He subsequently came to Ireland. He states that he spent three months as a voluntary patient in St. Patrick's Hospital, Dublin. Other medical evidence establishes that he was in St. Brendan's Hospital, Dublin from the 16th July, 1999, to the 24th August, 1999.

It is not entirely clear when the applicant began to reside in Waterford, but he appears to have taken up residence there by June, 1999. In April, 2000 he was residing in Bolton House, which is described as "the Independent Protestant Hostel"; the administrator of this hostel is a Baptist Minister. By religion the applicant is a Jehovah's Witness. Arising out of an incident in Bolton House, the applicant was on the 16th April, 2000, brought by members of An Garda Síochána to the department of psychiatry, Waterford Regional Hospital. He had been examined by a local general practitioner, Dr. Power, and he was admitted as a temporary chargeable patient under s. 184 of the Mental Treatment Act 1945. He...