Court of Appeal: Lack of effective mechanism to review detention under Mental Health Act is unconstitutional

About this case:

• Judgment:
  External link
• Judge:
  Mr Justice Gerard Hogan

Suspending the declaration of unconstitutionality until November 2018, Mr Justice Gerard Hogan said that the potentially catastrophic consequences for mental health services justified suspending the declaration, and gave the Oireachtas and Government time to enact fresh legislation.

Background

The applicant, AB, suffered from learning delay and behavioural problems since early childhood. His behaviour was described as becoming increasingly more challenging in recent years, with episodes of violent and erratic behaviour, which became more threatening when he did not take his medication.

In May 2015, AB suffered a serious psychotic break, and was admitted as a voluntary patient at St Loman’s Hospital, Mullingar. Within 24 hours he attempted to leave, but was detained under s23 of the Mental Health Act 2001. An admission order for 21 days was made on 28th May 2015, and affirmed by a Mental Health Tribunal on 17th June 2015.

Hereafter, a number of renewal orders were made for periods of three months, six months, and twelve months; pursuant to s.15(2) and s.15(3) of the Mental Health Act 2001.

Justice Hogan said that it was interesting to note that in November 2015, the consultant psychiatrist who AB was under the care of, expressed the view that AB had recovered sufficiently to be discharged if he were to receive the necessary residential support.

Objecting to AB’s continued detention at the Tribunal hearing in March 2016, AB’s solicitor referred to letters written by the same consultant in December 2015 and January 2016 which stated that AB’s psychiatric illness had resolved “months ago”, that there were identifiable risks posed by his continued detention, that the psychiatric unit was neither suitable nor appropriate, and that he had remained in the ward only because of a lack of suitable residential placement in disability services.

Ultimately AB was in involuntary detention until September 2017, when bespoke accommodation was provided for him by the Health Service Executive.

Constitutional claim

AB sought a declaration that insofar as ss.3(1)(a) and s.15 of the Mental Health Act 2001 authorised his detention up until the 13th September 2016, and ss.3(1)(b) and s.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.

Regarding the longer periods of involuntary detention under the Mental Health Act 2001 – i.e. six months (s.15(2)) and twelve months (s.15(3)) – he had no realistic or effective mechanism available to him whereby he could establish that he was no longer suffering from a mental illness.

Justice Hogan explained that, in other words, once a renewal order had been affirmed by a Tribunal and any possible appeal to the Circuit Court under s.19 dismissed, AB maintained that he had to continue in involuntary detention under the Mental Health Act 2001 “for the remainder of the renewal order even though he might no longer be suffering from a mental disorder”.

AB also sought declarations to the effect that these particular provisions are incompatible with Articles 3, 5, 8, 13 and 14 of the European Convention of Human Rights for similar reasons; and an order of certiorari quashing the twelve month renewal order made on the 13th September 2016.

The State respondents maintained that if this situation were ever to arise the applicant would have a variety of remedies open to him. They contended that the responsible consultant psychiatrist would be under a duty to release the patient in such circumstances (s. 28) and any failure properly to exercise these powers could be quashed in judicial review proceedings. Furthermore, they stated that it would also be open to such an applicant to seek his release under Article 40.4.2 of the Constitution on the ground that he was no longer suffering from a mental disorder within the meaning of the Mental Health Act 2001.

High Court

In the High Court, Justice Binchy held that while AB had no standing to pursue the constitutional challenge, there was no effective means of challenging his involuntary detention after having exhausted a recourse to the Tribunal or the Circuit Court. As such, it was held that Part 2 of the Mental Health Act 2001 was incompatible with Article 5(4) of the European Convention of Human Rights.

Court of Appeal

The State respondents appealed to the Court of Appeal against the declaration of incompatibility, and AB cross-appealed the finding that he had no standing to pursue the constitutional claim.

Justice Hogan held that Justice Binchy’s finding on standing could not be sustained, as he said that AB clearly fulfilled the requisite Cahill v. Sutton criteria. Justice Hogan said that he would follow the “pragmatic approach” outlined in McGowan v. Labour Court IESC 21, 3 I.R. 713 and other cases, and proceed to determine the merits of the constitutional challenge despite the absence of a High Court determination.

Considering FX v Clinical Director of the Central Mental Hospital IESC 1, Ryan v Governor of Midlands Prison IESC 54, and SMcG v Child and Family Agency IESC 9, 1 IR 1; Justice Hogan concluded that in Article 40.4.2 proceedings the High Court does not have jurisdiction to rule on the medical merits of the application, the comments to the contrary in Croke v. Smith notwithstanding.

Justice Hogan said that the effect of this was 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”.

Accordingly, the State failed in its duty to vindicate the right to personal liberty, by failing to provide for an effective opportunity whereby the involuntary patient can have his or her detention independently reviewed within a reasonable time.

This amounted to a breach of Article 40.4.1 when read in conjunction with Article 40.3.1 and Article 40.3.2 – therefore s.15(3) of the Mental Health Act 2001 “must be adjudged to be unconstitutional”.

Considering NHV v. Minister for Justice IESC 40, 1 I.L.R.M. 69, Justice Hogan said that the risk to personal safety of vulnerable patients and to others, and the “potentially chaotic and catastrophic consequences within the mental health system” that would be caused by a declaration of unconstitutionality, justified suspending the declaration.

As such, Justice Hogan suspended the declaration of unconstitutionality until 8th November 2018, to allow the Oireachtas and the Government to enact fresh legislation to cure the unconstitutionality so identified.