Croke v Smith (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1998
• Docket Number: [S.C. No. 272 of 1995]
• Date: 01 January 1998

Croke v. Smith (No. 2)

In the matter of a reference pursuant to Article 40.4.3 of the Constitution

Sean Croke

Applicant

and

Charles Smith, Art O'Connor, Eastern Health Board, Ireland and The Attorney General, Respondents (No. 2)

[S.C. No. 272 of 1995]

Supreme Court

Constitution - Personal rights - Liberty - Person of unsound mind - Detention of person to whom chargeable patient reception order made - Discharge by proper authority - Whether administration of justice - Type of inquiry required - Mental Treatment Act, 1945 (No. 19), s. 172 - Mental Treatment Act, 1961 (No. 7) - Constitution of Ireland, 1937, Article 40.1, Article 40.3.1 and Article 40.4.

Statute - Validity - Presumption of Constitutionality - Whether statutory provision constitutional - Mental Treatment Act, 1945 (No. 19), s. 172.

Article 40.4.3 of the Constitution provides that:-

"3. Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated . . ."

Pursuant to s. 162 of the Mental Treatment Act, 1945, application may be made by designated persons to registered medical practitioners for recommendations for the reception and detention of persons of unsound mind in district mental hospitals.

Section 163 (2) sets out the contents of a recommendation for reception.

Section 71 of the Act of 1945 provides for the examination of the person by the resident medical superintendent of the hospital and the making or refusal of a chargeable patient reception order.

Section 172 of the Act of 1945 provides as follows:-

"(1) Where a chargeable patient reception order is made, any of the persons mentioned in subsection (2) of this section may receive and take charge of the person to whom the order relates and detain him until his removal or discharge by proper authority or his death and, in case of his escape, retake him within twenty-eight days thereafter and again detain him as aforesaid.

• (2) The persons entitled to receive, take charge of, detain, and retake a person under this section shall be -

  • (a) the mental hospital authority maintaining the district mental hospital mentioned in the relevant chargeable patient reception order,

  • (b) the resident medical superintendent of such hospital,

  • (c) the other officers and the servants of such hospital."

Section 218 of the Act provides for the removal or discharge of chargeable patients who have recovered within 7 days of the giving of notice under the section.

Section 220 provides for the discharge of a chargeable patient upon the application of a relative or friend to take care of the patient.

Section 221 provides that a patient shall not be discharged where a written certificate has been given by the resident medical superintendent that the person is dangerous or otherwise unfit to be discharged. It further provides that where an objection is made to the certificate by or on behalf of the person to whom it relates, the Minister may require the Inspector of Mental Hospitals to examine the person and the Minister may, after consideration of the report of the Inspector of Mental Hospitals, direct the discharge of the person.

Section 222 of the Act provides that the Minister may, on application by any person, order the examination of a person detained in a mental institution by two registered medical practitioners and if they certify such person may be discharged without risk of injury to himself or others, the Minister may direct the discharge of such person.

Section 237 of the Act, as amended by s. 33 of the Act of 1961, provides, inter alia, that the Inspector of Mental Hospitals ". . . notify the person in charge of the institution that he has doubts as to the propriety of such patient's detention".

Section 239 provides that the Inspector of Mental Institutions shall notify the Minister if the detention requires further consideration and the Minister may require a further visit and report by the Inspector and may, after consideration of such report, direct the discharge of the patient.

Section 241 of the Act of 1945 provides:-

"The President of the High Court may by order require and authorise the Inspector of Mental Hospitals to visit and examine any person detained at any place as a person of unsound mind and to report to the President of the High Court on the condition of such person."

Section 266 of the Act of 1945 as amended by s. 36 of the Act of 1961 provides:-

"Any letter addressed by a patient in a mental institution to the Minister, the President of the High Court, the Registrar of Wards of Court, a mental hospital authority, a visiting committee of a district mental hospital, or the Inspector of Mental Hospitals shall be forwarded unopened."

Upon application for an inquiry pursuant to Article 40.4.2 of the Constitution as to the lawfulness of the applicant's detention in the Central Mental Hospital, the High Court (Budd J.) being satisfied that the applicant's detention was in accordance with the provisions of the Mental Treatment Act, 1945, as amended, and in particular s. 172 of that Act, but that such law was invalid having regard to the provisions of the Constitution, referred to the Supreme Court by way of case stated, pursuant to Article 40.4.3 of the Constitution the question of the validity of s. 172 of the Act of 1945 having regard to the provisions of the Constitution.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Blayney, Denham and Barrington JJ.), in answering the case stated, 1, that s. 172 of the Act of 1945 empowered the person set forth in sub-s. 2 thereof to deprive a person, in respect of whom a chargeable patient reception order had been made, of his liberty. The purpose of s. 172 of the Act of 1945 was to provide for the detention of persons of unsound mind who were certified to be proper persons for detention under care and treatment.

2. That in considering the constitutionality of a law passed by the Oireachtas, the Court must (i) grant to the impugned provision the presumption of constitutionality unless and until the contrary was clearly established; (ii) not declare the impugned provision to be invalid where it was possible to construe it in accordance with the Constitution; (iii) favour the validity of the provision in cases of doubt; and (iv) have regard to the fact that the presumption of constitutionality carried with it not only the presumption that the constitutional interpretation for construction was the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which were permitted, provided for or prescribed by an Act of the Oireachtas were to be conducted in accordance with the principles of constitutional justice.

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470 and East Donegal Co-operative Livestock Mart Ltd. v. Attorney General[1970] I.R. 317 considered.

3. That there was a presumption that in the enactment of the Act of 1945 and, in particular s. 172 thereof, the Oireachtas was conscious of and had regard to the constitutional obligation on the courts to protect as best they may from unjust attack and in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen, including in particular citizens suffering from mental disorders.

4. That, in considering whether or not the Oireachtas had failed in its obligation under Article 40.1 of the Constitution, the matters to be considered were: (i) the persons to whom s. 172 applied; (ii) the nature of the powers conferred by s. 172; and (iii) whether the constitutional rights of the persons affected were breached by the provisions of s. 172 of the Act of 1945 and by the alleged failure of the Oireachtas to provide adequate safeguards in the administration thereof which would ensure that a citizen was not, even for a short period unnecessarily deprived of his liberty.

5. That the State, including the Oireachtas, was obliged by virtue of the provisions of Article 40.3.1 in its laws to respect, and as far as practicable by its laws to defend and vindicate the personal rights of the citizen but was entitled to have due regard to differences of capacity and the particular requirements of particular citizens, particularly those suffering from incapacity including mental disorders.

6. That in considering whether powers of detention were invalid having regard to the constitution, the court must consider (i) the objectives of the Act and the other provisions thereof; (ii) the safeguards and other protections afforded by the Act; and (iii) the procedures regarding detention and release therefrom contained in the Act.

7. That the initial detention of a person considered to be of unsound mind and to be a proper person to be taken in charge and detained under care and treatment pursuant to a chargeable patient reception order made in accordance with s. 171 of the Act of 1945 was not part of the administration of justice and did not require a judicial inquiry or determination. The sections which permitted of such detention did not constitute an attack upon the personal rights of the citizen but rather vindicated and protected the rights of the citizens concerned by providing for their care and treatment and were not repugnant to the Constitution on this ground.

In re Philip Clarke [1950] I.R. 235approved.

8. That the decision to make a recommendation for a reception order or a chargeable patient reception order could be set aside in the appropriate circumstances by the court upon an application for judicial review or...