Ms F v Mental Health Tribunal

JudgeMr Justice Max Barrett
Judgment Date08 November 2016
Neutral Citation[2016] IEHC 623
Docket Number[2015 No. 642JR]
CourtHigh Court
Date08 November 2016
– AND –
– AND –
Notice Party

[2016] IEHC 623

[2015 No. 642JR]


Health – Mental Health Act 2001 – Involuntary detention in mental health care facility – Affirmation by Mental Health Tribunal – Appeal to Circuit Court – Refusal to hear appeal due to lapse of time – Violation of right of statutory appeal

Facts: Following the refusal of the Circuit Court to hear an appeal against the order of the respondent/Mental Health Tribunal affirming the admission order of the applicant for her detention in a mental health hospital on the basis of lapse of time, the applicant now sought an order of certiorari for quashing the decision of the Circuit Court. Subsequently, the Circuit Court affirmed the other order of the respondent which, in turn, had affirmed the renewal order for the applicant's continuous detention. The key issue for determination was whether the Circuit Court was correct in refusing to hear the appeal in the first instance pending the currency of the extant renewal order. The applicant contended that the refusal to hear the appeal was a violation of her statutory right of appeal. The respondents argued that it was well settled by the Courts that periods of detention under an admission order and a renewal order should be counted as separate periods of detention and any defect in the initial admission order could not be cured by a subsequent renewal order.

Mr. Justice Max Barrett refused to grant the relief sought by the applicant. The Court held that the appeal of the applicant against the admission order had become moot as it had been substituted by another renewal order, which was not an extension of that admission order but a separate order. The Court found that it would have been premature for the Circuit Court to affirm or revoke the said renewal order pending the determination of appeal by the respondent. The Court, however, noted that there were procedural lapses as notice of appeal pertaining to the admission order should have been amended to make it an appeal against the renewal order. The Court also observed that the Circuit Court could have exercised options to either adjourn the appeal pending the determination of the appeal by the respondent or struck out the matter with further no order. The Court opined that there should be an amendment to the Act of 2001 to the effect of providing procedures for an appeal against a lapsed admission order during the currency of an extant renewal order for the common good.

JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.
I. Key Issues Arising.

A woman is detained involuntarily in a mental hospital pursuant to Order A on the ground that she is suffering from a mental disorder. This order is later affirmed by a mental health tribunal. The woman appeals against that affirmation to the Circuit Court. On appeal, the Circuit Court is empowered to affirm or to revoke Order A. By the time the appeal gets to the Circuit Court, Order A has lapsed and the woman, though she has continued throughout to be detained, is now being detained pursuant to Order B. The Circuit Court declines to proceed with hearing the appeal because Order A has lapsed and cannot now be affirmed or revoked. Did the Circuit Court proceed correctly? Are there inherent legal deficiencies in the process whereby such involuntary detentions are effected?

II. Background Facts.

Ms F is, unfortunately, a lady with a protracted history of mental ill-health. In the recent past she has been detained involuntarily on a number of occasions. She comes to court claiming that her statutory right of appeal against such involuntary detention has been violated in the past. Mindful that the future may yet involve a further period of such detention, at least if the past is any guide, Ms F is concerned that a further such violation (if violation there has been) might yet arise in the future, and is concerned to ensure that it does not. The steps that have led to the present proceedings are perhaps best outlined by way of the summary timeline that follows. The references to section numbers are to sections of the Mental Health Act 2001.

07/10/15 Admission Order (Order A) made (s.14). Order A good for 21


27/10/15 Mental health tribunal affirms Order A (s.18).

27/10/15 Renewal Order (Order B) made by Ms F's psychiatrist. Order

good to 27/12/15 and is basis for Ms F's continuing detention


28/10/15 Ms F appeals tribunal decision of 27/10/ 15 (s.19).

10/11/15 Circuit Court declines to hear appeal against lapsed Order A.

16/11/15 Mental health tribunal affirms Order B (s.18).

15/12/15 Circuit Court hears appeal against decision of 16/11/15.

Affirms Order B (s.19).

III. Applicant's Principal Contentions.

Arising from the above-described facts, all manner of contentions have been made. These are described hereafter; however, the critical issue arising is did the Circuit Court proceed properly on the 10th November, 2015, or ought it to have proceeded otherwise? The various contentions are as follows. First, the Circuit Court erred on 10th November in placing a restriction on Ms F's right of appeal that is not provided for by the Act of 2001. Second, the Circuit Court failed on 10th November to interpret s.19 in a constitutional manner. Third, the approach adopted by the Circuit Court on 10th November led to a discriminatory result in that it debarred Ms F from her appeal in a manner that would not affect patients wishing to appeal affirmations of renewal orders. Fourth, there was no reason why the Circuit Court could not have made a determination as to whether or not Ms F was suffering from a mental disorder on 10th November. Fifth, to vindicate Ms F's statutory right of appeal, and where a renewal order was in place, it was open to the Circuit Court to construe the renewal order as nothing more than an extension of the admission order. Sixth, the Mental Health Commission is discharging its functions under the Act of 2001 in such a manner as to deny patients their statutory right of appeal against an admission order, despite the Commission's obligation, under s.33(1) of the Act of 2001, to ' take all reasonable steps to protect the interests of persons detained in approved centres under this Act'. Seventh, the Mental Health Commission is to be criticised for not expediting the pre-appeal portion of the review process so as to ensure Ms F could exercise her right to bring an appeal. Eighth, s.19 is unconstitutional. Ninth, s.19 violates the European Convention on Human Rights. Tenth, a number of further points are made as regards how the court should interpret the statutory right of appeal conferred by s.19, viz. that the legislature does not act in vain, that the court should have regard to the purpose of the Act of 2001 in approaching its interpretation of same, that the court is obliged to vindicate the rights of Ms F, including but not limited to her constitutional right to liberty and her right to equality before the law; and that if the court finds a denial of Ms F's rights to have occurred, it is not limited to granting one or more of the reliefs that she seeks but can fashion its own remedy. The court examines each of these contentions later below.

IV. Reliefs Sought.

Ms F seeks a variety of reliefs at this time, including (1) an order of certiorari quashing the order of the Circuit Court of 10th November, 2015, (2) a declaration that the Circuit Court erred in law in failing to make a decision on the merits of Ms F's appeal, as contemplated by s.19 of the Act of 2001, (3) a declaration that s.19 of the Act of 2001 is unconstitutional and invalid, and (4) a declaration that s.19 is incompatible with the European Convention on Human Rights.

V. Section 19.

Section 19 of the Act of 2001 provides for an onward appeal to the Circuit Court by a patient who is aggrieved by the decision of a mental health tribunal to affirm an admission or renewal order. The sole ground of appeal is that the patient is not in fact suffering from a mental disorder. Thus s.19(1) provides that ' A patient may appeal to the Circuit Court against a decision of a tribunal to affirm an order [be it an admission order or a renewal order] made in respect of him or her on the grounds that he or she is not suffering from a mental disorder'. Under s.19(4) of the Act, the burden of proof shifts to the patient, so that ' unless it is shown by the patient to the satisfaction of the Court that he or she is not suffering from a mental disorder', the Circuit Court must ' affirm the order'. (If it is so shown, the Circuit Court must revoke the order). In the present case, the difficulty that confronted the Circuit Court was that, notwithstanding the continuing detention of Ms F at the date of the appeal hearing, the order of 7th October, 2015, that was being appealed against (lapsed Order A) had been superseded by the consulting psychiatrist's renewal order (extant Order B).


The respondents contend, correctly, that the Superior Courts have now repeatedly held that each period of detention, under an admission order and each subsequent renewal order, is a separate period of detention, so that a deficiency, for example, in an initial admission order does not taint the validity of a subsequent renewal order. (See, for example, W.Q. v. Mental Health Commission [2007] 3 I.R. 755, E.H. v. Clinical Director of St Vincent's Hospital [2009] 3 I.R. 774, and M. v. Clinical Director of the Department of Psychiatry, University Hospital Limerick [2016] IEHC 25). In W.Q., O'Neill J. offered a notably patient-focused rationale for this approach, stating at 770:

'There is, in the best interests of a person suffering from a mental disorder, a need...

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  • A.B. v Clinical Director of St.Loman's Hospital
    • Ireland
    • High Court
    • 3 May 2017
    ...the constitutional rights of persons detained. Reference is made to the decision of Barrett J. in Ms. F. v Mental Health Tribunal & Ors. [2016] IEHC 623 wherein he stated at para. 20:- 'Ms. F. contends that that the court should have regard to the purpose of the Act of 2001 in approaching ......
  • F v Mental Health Tribunal
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    ...the decision of the Circuit Court not to hear her appeal. The High Court (Barrett J.) refused to grant any of the reliefs sought (see [2016] IEHC 623) and the applicant appealed to the Court of Appeal. The Court of Appeal (Peart, Hogan and Gilligan JJ.) allowed the appeal (see [2018] IECA 1......

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