A.B. v The Clinical Director of St. Loman's Hospital

JudgeMr. Justice Gerard Hogan
Judgment Date03 May 2018
Neutral Citation[2018] IECA 123
CourtCourt of Appeal (Ireland)
Docket Number[C.A. No. 344 of 2017],Neutral Citation Number: [2018] IECA 123
Date03 May 2018
- AND -


- AND -

[2018] IECA 123

Hogan J.

Peart J.

Hogan J.

Gilligan J.

Neutral Citation Number: [2018] IECA 123

Record No. 2017/ 344


Constitutionality – Mental Health Act 2001 s. 15(3) – Detention – Respondent seeking to pursue a constitutional claim – Whether respondent had standing to pursue the claim

Facts: The respondent sought a declaration that insofar as ss. 3(1)(a) and 15 of the Mental Health Act 2001 authorised his detention up until the 13th September 2016, and ss. 3(1)(b) and 15 continued to authorise his detention up until the 12th September 2017, those sections are invalid having regard to the provisions of Article 40 of the Constitution. The respondent also sought declarations to the effect that the particular provisions were incompatible with Articles 3, 5, 8, 13 and 14 of the European Convention of Human Rights (ECHR). The respondent further sought an order of certiorari quashing a twelve month renewal order made on the 13th September 2016 which purported to authorise the respondent's detention until the 12th September 2017. The High Court (Binchy J) held that while the respondent had no standing to pursue the constitutional challenge, he nonetheless held that as the respondent had no effective means (whether by means of recourse to Article 40.4.2 of the Constitution or otherwise) of challenging his involuntary detention after having exhausted a recourse to the Tribunal or the Circuit Court), aspects of Part 2 of the 2001 Act were incompatible with Article 5(4) of the ECHR. The High Court accordingly granted a declaration to that effect pursuant to s. 5(1) of the European Convention of Human Rights Act 2003. The appellants, the Clinical Director of St. Loman's Hospital, the Health Service Executive, the Minister for Health, the Attorney General and Ireland, appealed to the Court of Appeal against that declaration and the respondent cross-appealed against the decision holding that he had no standing to pursue the constitutional claim.

Held by Hogan J that Binchy J's finding that the respondent lacked standing to advance the constitutional challenge could not be sustained, as he clearly fulfilled the requisite Cahill v Sutton [1980] IR 269 criteria. In light of the reasoning of the Supreme Court in FX v Clinical Director of the Central Mental Hospital [2014] IESC 1, Ryan v Governor of Midlands Prison [2014] IESC 54 and SMcG v Child and Family Agency [2017] IESC 9, Hogan J held that in Article 40.4.2 proceedings the High Court does not have jurisdiction to rule on the medical merits of the application. Hogan J held that an involuntary patient detained under s. 15(3) for a period of up to twelve months does not have an effective means of vindicating his right to personal liberty by securing an independent review of that detention following the making of the renewal order and the conclusion of any s. 19 appeal to the Circuit Court. Hogan J held that it was plain that the State failed in its duty to vindicate the right to personal liberty as best it may by failing to provide for an effective opportunity whereby the involuntary patient detained for this period of time can have his or her detention independently reviewed within a reasonable time. Hogan J held that this amounted to a breach of Article 40.4.1 when read in conjunction with Article 40.3.1 and Article 40.3.2. Hogan J held that the sub-section empowering this involuntary detention without the necessary attendant safeguards, namely, s. 15(3) of the 2001 Act, must be adjudged to be unconstitutional.

Hogan J held that this declaration of unconstitutionality in respect of s. 15(3) of the 2001 Act should stand suspended until the 8th November 2018 when the finding of unconstitutionality will take effect without further order.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 3rd day of May 2018

This is now the third time this year in which this Court has been obliged to consider the interpretation and application of the Mental Health Act 2001 ('the 2001 Act'). The first two cases, PL v. Clinical Director of St. Patrick's University Hospital [2018] IECA 29 and IF v. Mental Health Tribunal [2018] IECA 101, raised very important questions concerning respectively the status of voluntary patients and the scope of an appeal from a Mental Health Tribunal to the Circuit Court. The present appeal however raises issues of far-reaching importance concerning the operation of the 2001 Act and the very constitutionality of a key part of that legislation. The significance of the present case for the practical operation of the 2001 Act cannot really be over-stated.


Before embarking upon a consideration of these issues, it is only right to say that this Court has had the great privilege of reading written submissions and listening to oral submissions from all parties of the very highest quality. The Court is accordingly indebted to the parties for their assistance.

The background to the application

The applicant (whom I shall term Mr. B.) was born in 1983. He has an intellectual disability and he has unfortunately suffered from learning delay and behavioural problems since early childhood. This has proved acutely challenging for his family, but it is only right that in this judgment the devotion and care for him so evidently displayed by his parents, Mr. and Ms. B., is appropriately acknowledged. This is also true of many others, ranging from medical professionals, nurses, carers, teachers and others. As Ms. B. stated in her affidavit, 'many people have worked hard to assist in the management of his disability and to try to allow him to have a decent quality of life.'


Mr. B. attended a range of special schools during his childhood and displayed a propensity to aggression and anti-social behaviour. Ms. B. complains plaintively about the lack of appropriate State supports at various times during his life, supports which she maintains – doubtless with good reason – meant that he lost valuable training and therapy at various important stages in his life. While Ms. B. maintains that her son has benefited from various types of community living for persons with intellectual disabilities, she acknowledges that in recent years her son's behaviour has become increasingly more challenging, with episodes of violent and erratic behaviour. This behaviour became more threatening when Mr. B. did not take his medication. By this stage the family's general practitioner had concluded that Mr. B. posed a very real threat to himself and to others and that absent supervised long-term residential care, there was a real risk of a fatality.


In May 2015 Mr. B. suffered from a serious psychotic episode where he had persecutory delusions that he and his family were under attack. The applicant was terrified by these delusions and he was initially admitted as a voluntary patient at St. Loman's Hospital. Within a day he attempted to leave, but he was then detained pursuant to s. 23 of that 2001 Act. On the 28th May 2015 an admission order was made for a 21 day period, which decision was affirmed by a Mental Health Tribunal ('the Tribunal') on the 17th June 2015.


There then followed a series of renewal orders which were generally made for a period of three months (and later for a period of six months and later again for a period of 12 months) under s. 15(2) and s. 15(3) of the 2001 Act and which orders were in turn affirmed by the Tribunal. Mr. B. has been in involuntary detention at St. Loman's since that date until he was discharged in September 2017 when bespoke accommodation was provided for him by the HSE. During that period of involuntary detention he was under the care of the receiving consultant psychiatrist, Dr. Mark Rowe.


It was Dr. Rowe who made a renewal order on 17th June 2015 pursuant to s. 15(2) of the 2001 Act authorising the applicant's detention for a period of three months, which order was later affirmed by the Tribunal. A further order authorising the applicant's detention was made by Dr. Rowe on the 14th September 2015, which was affirmed by the Tribunal on 1st October 2015.


On the 14th March, 2016, Dr. Rowe made an order pursuant to s. 15(3) of the 2001 Act authorising the applicant's continued detention for a period of six months up to 13th September 2016. Dr. Rowe concluded that Mr. B. was suffering from a mental disorder within the meaning of s. 3(1)(a) of the 2001 Act, namely, 'because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or to other persons.'


It is nonetheless of interest to note that following his detention in St. Loman's in May 2015, Mr. B.'s psychotic symptoms were managed and kept under control. Indeed in November 2015, Dr. Rowe has expressed the view that the applicant had recovered sufficiently to be discharged if he were to receive the necessary residential support. Ms. B. describes this support as comprising:

'an individualised programme in his own home, where he has twenty-four hour supervision. These necessitate a site with a building which lends itself to being split in two so there can be two independent properties, one for the applicant and the other for the staff who support him. The staff can then be available to provide support on a twenty-four hour basis without overly encroaching on him. The applicant requires support at all times to help him with his daily activities and his anxiety, and yet he requires some distance from staff at times when being around other people becomes too overwhelming for him. He...

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