E.C. v Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Anthony M. Collins
• Judgment Date: 06 March 2025
• Neutral Citation: [2025] IECA 55
• Docket Number: Court of Appeal Record Number: 2024/137

Between/

E.C.

Plaintiff/Respondent

and

Ireland and The Attorney General

Defendants/Appellants

And by Order of the Court

The Irish Human Rights and Equality Commission and The Mental Health Commission

Notice Parties

[2025] IECA 55

Faherty J.

Pilkington J.

Collins J.

Court of Appeal Record Number: 2024/137

High Court Record Number: 2022/6528P

AN CHÚIRT ACHOMHAIRC

THE COURT OF APPEAL

Leave – Statutory interpretation – Mental Health Act 2001 s. 73(1) – Appellants seeking to set aside such parts of a judgment and ruling as permitted the respondent to challenge the constitutional validity of s. 57 of the Mental Health Act 2001 – Whether Mental Health Act 2001 s. 73(1) leave was required for the proceedings as drafted

Facts: The appellants, Ireland and the Attorney General, by notice filed on 11 June 2024, asked the Court of Appeal to: set aside such parts of the judgment of the High Court (Egan J) delivered on 5 May 2023, and of the ruling made on 27 July 2023, as permitted the respondent to challenge the constitutional validity of s. 57 of the Mental Health Act 2001 in the proceedings; set aside the order of the High Court of 13 October 2023 to add Ireland and the Attorney General as defendants to the proceedings and to grant the respondent leave to amend the plenary summons, indorsement of claim and statement of claim; strike out the respondent’s proceedings in their entirety. By notice filed on 1 November 2024, the respondent, inter alia, cross-appealed the High Court’s finding that s. 73 of the 2001 Act was a jurisdictional bar to the institution and maintenance of his proceedings against the Health Service Executive (the HSE). The proceedings against it having been struck out for want of compliance with s. 73 of the 2001 Act, the HSE held a watching brief at the hearing of the appeal. The appeal raised two questions of law. Paragraphs 5 and 67 of the judgment of the High Court Judge clearly identified the first: “the decision for this court is only whether s. 73(1) leave is required for the proceedings as presently drafted”. If leave was required to institute such proceedings, the second question that arose was whether non-compliance with that requirement prevented the High Court from adjudicating upon them.

Held by Collins J that the Superior Court judgments that have considered s. 73 of the 2001 Act do not answer these questions directly, although M.P. v HSE [2010] IEHC 161 and C. v Casey [2022] IECA 24 were of some assistance. Regarding the first question, having considered the language the Oireachtas used in s. 73(1) of the 2001 Act in the context of which it formed a part, Collins J held that it is to be read literally, such that civil proceedings of the nature contemplated by the sub-section shall not be instituted in respect of an act purporting to have been done in pursuance of the 2001 Act save by leave of the High Court. Collins J held that the contents of the proceedings the subject of the appeal disclosed that leave of the High Court under s. 73(1) of the 2001 Act was required for them to have been instituted in accordance with law. Regarding the second question, Collins J concluded that the respondent’s non-compliance with s. 73(1) of the 2001 Act deprived the High Court of jurisdiction to take any steps in the proceedings.

Collins J proposed that the Court allow the appeal, dismiss the cross-appeal, and strike out the proceedings.

Appeal allowed. Cross-appeal dismissed.

Appearances:

For the Plaintiff/Respondent: Ciarán D. Craven SC and Amy Deane, instructed by Daly Lynch Crowe and Morris Solicitors LLP

For the Defendants/Appellants: Feichín McDonagh SC and Joe Holt, instructed by the Chief State Solicitor

APPROVED – NO REDACTION NEEDED

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 6 ^th day of March 2025

I. Introduction

1 . By s. 73(1) of the Mental Health Act 2001 (‘the Act of 2001’) no civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of that Act save by leave of the High Court. In this appeal, the Court is required to interpret that provision and to determine the consequences of any non-compliance therewith.

II. Background

2 . On 23 December 2022, solicitors acting on behalf of E.C. (hereafter ‘the Respondent’ or, where appropriate, ‘the Plaintiff’) caused to have issued out of the Central Office of the High Court a Plenary Summons in proceedings entitled “ The High Court Record No. 2022/6528P Between T….. N…. Plaintiff and Health Service Executive and Peter Whitty Defendants and Ireland and Attorney General and Irish Human Rights and Equality Commission Notice Parties.” That Plenary Summons was indorsed as follows:

• 1. A Declaration that the Plaintiff's treatment with depot neuroleptic medication without his full and/or proper and/or lawful or any consent thereto, and despite his express refusal thereof, by the Second Defendant, or his servants or agents, at the First Defendant's Hospital, and without a proper assessment and/or determination that he lacks functional capacity to consent to such treatment by reason of his mental disorder:

  • a. is unlawful, and/or

  • b. is in breach of the Mental Health Act 2001 section 57(1), and/or

  • c. breaches the Plaintiff's rights by reference to Bunreacht na hÉireann and, in particular, Article 40.3.1 and his personal rights derived therefrom including, but not limited to, his rights to bodily integrity, privacy and to respect for his autonomy, and Article 40.3.2 and, in particular, his right to the person and/or fails to respect his human dignity;

• 2. A Declaration that the physical restraint of the Plaintiff by the Defendants' servants or agents, or other persons employed or engaged thereby, for the purpose of administering depot neuroleptic medication to him without his consent and despite his refusal and without a proper assessment and/or determination that he lacks functional capacity to consent thereto, as aforesaid:

  • a. is unlawful, and/or

  • b. breaches the provisions of the Mental Health Commission Code of Practice on the Use of Physical Restraint in Approved Centres (October 2009);

• 3. A Declaration that the Mental Health Act 2001 section 57(1) does not permit or justify or render lawful the Plaintiff's treatment with depot neuroleptic medication without a proper assessment and/or determination that he lacks functional capacity to consent to such treatment by reason of his mental disorder;

• 4. A Declaration that the opinion of the Second Defendant, or his servants or agents, that the Plaintiff lacks functional capacity to consent to such treatment by reason of his mental disorder does not constitute a proper or lawful determination of any such lack of capacity and is not sufficient to justify his treatment without consent thereto, and despite refusal thereof, as aforesaid pursuant to the Mental Health Act 2001 section 57(1);

• 5. If necessary, a Declaration that, should the opinion of the Second Defendant, or his servants or agents, that the Plaintiff lacks functional capacity to consent to such treatment by reason of his mental disorder constitute a proper or lawful determination of any such lack of capacity sufficient to justify his treatment without consent thereto, and despite refusal thereof, as aforesaid, pursuant to the Mental Health Act 2001 section 57(1), that section:

  • a. breaches and/or fails to respect and, insofar as is practicable, to defend and vindicate the Plaintiff's rights by reference to Bunreacht na hÉireann Articles 40.3.1 and 40.3.2 and is invalid having regard to the provisions thereof, and/or

  • b. breaches the Plaintiff's rights by reference to the European Convention on Human Rights and, in particular Articles 6, 8, 13 and/or 14 and is incompatible therewith;

• 6. An injunction restraining the Defendants, their servants or agents, or other persons employed or engaged thereby from:

  • a. administering depot neuroleptic medication to the Plaintiff without his full and/or proper and/or lawful consent thereto, and despite his express refusal thereof and without a proper assessment and/or determination, in accordance with law, that he lacks functional capacity to consent to such treatment, and

  • b. restraining the Plaintiff for the purpose of administering depot neuroleptic medication to him in the circumstances as aforesaid;

• 7. Damages for negligence and breach of duty, trespass to the person and, if necessary, misfeasance in public office, and for the negligent infliction of emotional suffering and for breach of the Plaintiff's constitutional rights and, if necessary, pursuant to the European Convention on Human Rights Act 2003 section 3.

3 . On 12 January 2023, the Respondent's solicitors moved the High Court (O'Moore J.) ex parte seeking orders to abridge the time for service of a notice of motion to restrain the defendants from administering depot neuroleptic medication to the Respondent without his full and/or proper and/or lawful consent. In acceding to that application, the High Court ordered that the Respondent “ have liberty to amend the title of the summons herein by deletion of the Notice Parties”.

4 . On the day following, the High Court (O'Moore J.) granted the interim relief sought, gave certain directions and made the motion returnable for 14 January 2023. The High Court (Hyland J.) heard that application and delivered judgment on 16 January 2023. She refused the application for interlocutory relief, joined the Attorney General, the Mental Health Commission and the Irish Human Rights and Equality Commission as notice parties to the proceedings, made directions as to delivery of pleadings by all parties and adjourned the matter to 18 January 2023.

5 . On 16 January 2023, the Respondent's solicitors served notices on the Attorney General under R.S.C. Ords. 60 and 60A. On 17 January 2023, the Respondent's solicitors...