Liberty

Cases

The State (Timothy Bowes) v Superintendent Fitzpatrick

1978 Nos. 601 & 602 SS

High Court

1 November 1978

[1978] I.L.R.M. 195
(ex tempore) (Finlay P)

delivered his judgment on 1 November 1978 saying: I am satisfied I must deal with this matter now. A detention which would continue to be lawful if this were a valid arrest would only continue for another 24 hours approximately and I cannot reserve judgment on it, and I am satisfied that I have a duty when called upon to do so to inquire into the bona fides of an arrest under s. 30 of the Offences against the State Act 1939, and the bona fides could be destroyed in several ways. The first of these is that there could be no suspicion that an offence scheduled under that Act had been committed. That is not the instant case, and there were grounds for believing that, in the course of an alleged murder and by the method by which the person who is believed to have committed that murder did commit it, inevitably damage was caused to the murder weapon and that technically constitutes the offence of malicious damage. The offence of malicious damage is one of the offences scheduled under the Offences against the State 1939 and, by what appears to be somewhat of a legal anomaly, murder, a very grave offence, is not a scheduled offence under the Act. In those circumstances I am satisfied, on the evidence given before me, that the arrest of the accused under s. 30 of the Offences against the State Act 1939, which on the candid evidence of Detective Sergeant Maguire was ultimately or in reality for the purpose of enabling him to be interrogated in respect of the alleged murder, was only made on suspicion of the commission of the offence of malicious damage as a colourable device to bring what is in reality and in plain truth a murder investigation within the ambit of s. 30 of the Offences against the State Act 1939.

The Court of Criminal Appeal, of which I was a member, in The People v Towson [1978] ILRM 122 considered this precise point and ruled that an arrest made under s. 30 of the Offences against the State Act 1939, upon suspicion of the commission by the accused of the offence of having in his possession firearms with intent to endanger life, was a valid arrest, notwithstanding the fact that the cir-cumstances or occasion on which the suspicion that the accused had been in possession of the firearms with intent to endanger life was also believed or suspected to be the same occasion on which the firearm was used by the accused or by others for the murder of an individual. In my view that is a different situation; both offences were serious, substantive and grave offences and the experience of the courts would indicate that in all probability the accused would be charged with both those offences and in Towson’s case he was; and, in my recollection, convicted of both offences, both of murder and the offence under the Firearms Act 1924. In this case I am satisfied that the very technical nature of the offence of malicious damage involved brings the case within a different category and that therefore the arrest of the accused is not justified — at least the arrest may have been justified for murder but the continued detention without being charged is no longer justified. In those circumstances he is, in my view, entitled now to be released from his present custody but I want to make it quite clear, I have made an order for his release pursuant to the provisions of the constitution. In my view that does not form any barrier to the right of the Garda Síochána to arrest him on a charge of murder provided that if he is so arrested, having regard to the events which have already occurred and to the time of the day it is now, he must be immediately and without any delay brought before the appropriate tribunal and charged before it and dealt with by the court. There can be no question of his now being arrested after being released by me and held for any appreciable time, I mean for more than the five or ten minutes necessary to bring him before the District Court.

MM v Clinical Director Central Mental Hospital

[2008] I.E.S.C. 31
Judgment of Mr. Justice Geoghegan delivered 7th day of May 2008

This is an appeal from a judgment and order of the High Court (Peart J.) in an application under Article 40.4.2 for an order for the release from the Central Mental Hospital of the above-named applicant/appellant, it being alleged that the appellant’s continued detention in the Central Mental Hospital is invalid. The above-named respondent had made a return justifying the detention pursuant to a renewal order in respect of the appellant under section 15 of the Mental Health Act, 2001 made on the 27th November 2007. On behalf of the appellant, it was argued that this renewal order was invalid for reasons which I will explain. The above-named Notice Party was joined in the proceedings by reason of its statutory functions under the said Act of 2001.

The allegation of invalidity in respect of the renewal order is based on one point only and, therefore, this appeal involves a single net issue.

The Mental Health Act, 2001, although passed in that year, did not come into operation until the 1st November, 2006. Prior to that time, the detention of the appellant in mental hospitals and the movement from one mental hospital to another was governed by the Mental Treatment Act, 1945. The appellant’s family live in Cork and when the appellant developed a dangerous schizophrenic condition involving various illusions which led him to commit criminal acts, he was treated at the North Lee Mental Health Services, St. Michael’s Unit, Mercy Hospital in Cork. From there because of the seriousness of his condition, he was lawfully transferred to the Central Mental Hospital in Dundrum, Dublin. This first occurred in 1998 and at that time the consultant psychiatrist treating him in Cork was Dr. John Cooney. The appellant’s detention at the Cork hospital had commenced on the 13th May, 1998 pursuant to the provisions of section 184 of the Mental Treatment Act, 1945. Dr. Cooney was the consultant psychiatrist who certified him. By virtue of a transfer order and various extension orders made up to the stage when the 2001 Act came into force, the appellant remained for almost the entire time in the Central Mental Hospital. For the purpose of all the necessary orders the documentation was signed by Dr. Cooney. Dr. Cooney kept regular contact with the appellant including visits to him in Dundrum and was continually kept informed in relation to him. Visits to Dundrum were made with reasonable frequency by Dr. Cooney and on those visits there was a very good relationship between Dr. Cooney and the appellant. It is not necessary to consider the procedures under the 1945 Act because there is no attack on the validity of the appellant’s detention in Dundrum before the 2007 renewal order was made. It is argued, however, on behalf of the appellant that under the provisions of the 2001 Act, Dr. Cooney was not the appropriate doctor to sign the renewal order of November, 2007. It is alleged that that had to be done by the consultant psychiatrist in daily charge of the appellant within the Central Mental Hospital. There is no dispute that this was a Dr. Dearbhla Duffy.

This argument arises in the following statutory context. Section 72(1) of the Mental Health Act, 2001 contained the following transitional provision.

“(1) Subject to the provisions of this section, where immediately before the commencement of Part 2, a person stood detained under section 171, 178, 184 or 185 of the Act of 1945, he or she shall be regarded for the purposes of this Act as having been involuntarily admitted under that Part to the institution in which he or she was so detained.”

Immediately prior to the making of the renewal order in controversy therefore, the appellant was validly in detention in the Central Mental Hospital by virtue of the said section 72. Section 15 of the 2001 Act provides for the duration and renewal of admission orders. Subsection (2) of that section reads as follows:

“The period referred to in subsection (1) may be extended by order (to be known as and in this Act referred to as ‘a renewal order’) made by the consultant psychiatrist responsible for the care and treatment of the patient concerned for a further period not exceeding 3 months.”

The question is what is meant by the expression “the consultant psychiatrist responsible for the care and treatment of the patient”. It is not defined in the Act. The expression “consultant psychiatrist” is defined in the Act and is stated to mean “a consultant psychiatrist who is employed by a health board or by an approved centre or a person whose name is entered on the division of psychiatry or the division of child and adolescent psychiatry of the Register of Medical Specialists maintained by the Medical Council in Ireland”. On the facts of this case the issue between the appellant and respondent is whether the consultant psychiatrist responsible for the appellant’s care and treatment should be regarded as being Dr. Duffy, as he would contend, Dr. Cooney or both as the respondent would contend or only Dr. Cooney as the notice party would contend. If the appellant’s contention is correct, that is to say, that the only person falling within the description is Dr. Duffy then it is contended that the renewal order is invalid and, accordingly, there is no lawful right to retain the appellant in the Central Mental Hospital. If, on the other hand, “the consultant psychiatrist responsible for the care and treatment of the appellant” is or includes Dr. Cooney, then the renewal order is clearly valid. The learned High Court judge considered that both doctors fell within that description. I agree, though this approach necessarily entails a court giving an unorthodox though purposive interpretation of the definite article before the words “consultant psychiatrist” in section 15(2) of the 2001 Act.

I turn now to explaining why I have arrived at the same view as the learned High Court judge. My starting point is that I am convinced that the absence of a statutory definition of the expression “the consultant psychiatrist responsible for the care and treatment of the patient” is quite deliberate. If as Mr. Feichin McDonagh, S.C. argues on behalf of the appellant, the expression must necessarily be confined to meaning the consultant psychiatrist in day to day charge of the patient in the particular hospital in which the patient is residing then it would seem surprising that the Act did not make that clear. It is not in dispute that certified extensions for detention in Dundrum, prior to the coming into operation of the 2001 Act, were properly done by Dr. Cooney. It is now suggested that by virtue of the wording in section 15(2) which includes an important expression undefined, there is a change in that position. If that was so, the Act would have made it clear.

Given the lack of statutory definition it is clearly a question of fact, as the learned High Court judge so found, to determine whether Dr. Cooney fell within the description when he signed the renewal order. My impression was that counsel for the appellant either accepted that to be so or at least accepted that it might be so, as a matter of law having regard to the lack of definition in the Act.

Dr. Cooney was submitted to a gruelling cross-examination by Mr. McDonagh but as I read the transcript the doctor never wavered from his position that he regarded himself as falling within section 15(2) and he gave clear reasons for holding that view. Early on in the cross-examination, Mr. McDonagh referred to an affidavit sworn by Dr. Cooney in which he had said that he was “responsible for the care and treatment of Mr. M”. He was asked whether that was right. Dr. Cooney’s answer was as follows: “That’s correct. I am his consultant since 1999 and I would consider him to be my patient since 1999 if that answers your question.” This was followed by the question “How is he this morning?”. That type of question reappeared throughout the cross-examination with a view to demonstrating that Dr. Cooney was not the every day doctor in charge of the appellant. However, as I will try and demonstrate from further answers, Dr. Cooney consistently and stridently challenged the implications underlying this form of questioning. When Mr. McDonagh asked Dr. Cooney would it be normal in his practice not to see a patient for three weeks who was under his care, he replied as follows:

“I think I would have to make the distinction before I answer your question as to the level of care that I have with M. I would be the consultant responsible for his care overall, the consultant with the best interest of M at heart overall since 1999. I do not look after him on a day to day basis nor is anything of what I have said in my affidavit leading the court to believe that, Sir.”

Following further questioning he went on to say that he regarded himself as responsible for the care and treatment of the appellant up to the present time. He conceded, of course, that he did not look after him on a day to day basis. Dr. Cooney referred Mr. McDonagh to correspondence he had with Dr. Duffy following on the new Act coming into operation and following the new certification which was made on the 27th November, 2006. In that correspondence Dr. Cooney said:

“I call to see M regularly anytime I have the chance that I am in Dublin in the interim and that I would make the next case conference provided I got adequate notice and that I would be in touch with the family”.

He goes on to refer to the fact that he had a very close relationship with the family and that he requested Dr. Duffy “that should there be any change in M’s position to please get on to me quickly and I can attend at short notice.” Immediately following that reference, Dr. Cooney said the following under cross-examination:

“I firmly believe he is my patient and I firmly believe I am overall the best placed consultant psychiatrist in the country to decide as to his certification, and in particular, as to his dangerousness, taking advice from my expert colleagues in forensic psychiatry at the Central Mental Hospital.”

He then said the following:

“I’d also point out to you that it would be far easier for the staff at the Central Mental Hospital, for the consultants at the Central Mental Hospital, to do the certification. But I, in discussion with my colleagues there, we both agreed that I was actually the best placed person to do it. So I took a day from my busy work in Cork to travel to Dublin to review M because I am the expert in M’s overall wellbeing, and also the expert to what facilities would be available to him should he be returning to Cork, should he no longer require hospitalisation, or should he no longer require secure hospitalisation as he currently has in the Central Mental Hospital.”

At a later part of the evidence, Dr. Cooney said this:

“I think I am overall responsible for M’s care and I firmly believe I am his consultant and I think his family, if they were here, would be telling you that as well. I think M would actually tell you that. He had a number of other consultants back over the years who have all retired, so it is me.”

When asked about the role of Dr. Duffy, Dr. Cooney said:

“I certainly regard Dr. Duffy as the psychiatrist who is caring for M on a day to day basis but I regard her care and the staff’s care of M as being, if you like, on loan from service in Cork, from his home service. They are caring for him as experts in forensic psychiatry but I would feel that I am overall responsible. If you met me on the train some day coming to Dublin you would say ‘what are you doing’, I would say, ‘I am going to see a patient of mine in Dublin’. I certainly wouldn’t say, ‘I am going to see a patient of Dr. Duffy’s in Dublin’.”

Again in answer to a few questions later on, Dr. Cooney said:

“I believe I am M’s responsible consultant. I believe he is my patient. I believe Dr. Duffy and her staff are looking after him on a day to day basis in Dundrum. Should there be any dramatic change in M’s condition I would expect to be immediately notified. I have put it on record that I am available at short notice to come and see him. If there was, God forbid, some calamity involved with M I would certainly be the one, I think, who would be first contacted and I would be the one to discuss that with the family.”

Dr. Cooney also made the point that although Dr. Duffy was the consultant looking after the appellant routinely during the day nevertheless, if she was on leave, on holidays, after hours, on weekends or absent from the hospital for one reason or another Dr. Cooney would deal with whatever consultant was responsible for the running of Dundrum at the time and that that varied. This, of course, raises another question to which I will briefly return. Dr. Cooney went on to say that he would be “extremely surprised” if Dr. Duffy, for instance, did not immediately inform him of a “significant incident or turn of events in relation to the mental disorder” that the appellant was suffering from.

I will refer briefly to Dr. Duffy’s evidence which essentially was entirely supportive of the evidence of Dr. Cooney. When asked whether she regarded herself as answering to Dr. Cooney in Cork for the way she was dealing on a clinical basis with the treatment and care of the appellant, she replied as follows:

“No, again, and I think this is being described by Dr. Cooney, I would see M as having his care and treatment involving a pathway, and along that pathway it involves out-patient treatment, in-patient. In M’s case in the early stages of his illness, he would have been treated as an out-patient, then an in-patient with his local service, so that was the early part of his pathway of care. And then as his illness became more severe he moved to the Central Mental Hospital. And ultimately, the hope is that M will be returned back to his local services along that pathway of care. So M would have more than one treating consultant psychiatrist in his pathway of care.”

I regard that answer as not only having importance in relation to the facts of this particular case but as assisting the court as to how to give what must necessarily be a purposive interpretation to a somewhat ambiguous piece of legislation. Mr. McDonagh tried to make play of the fact that when apparently the appellant developed a tremor following on taking particular medication, this fact was not brought to the knowledge of Dr. Cooney. I am satisfied that the evidence establishes that no significance can be attached to that fact and even without the assistance of the evidence, I would have thought that as a matter of common sense that would be so. Dr. Duffy, in her evidence, went on to accept that she was the consultant psychiatrist responsible for the care and treatment of the appellant while he was a patient in the Central Mental Hospital. But in saying that, she was not in any way, as I read her evidence, derogating from her view that Dr. Cooney was the doctor in overall charge. If, as I believe, both doctors fall within the description and that a renewal order signed by either would have been valid, it is immaterial to attempt to work out which might come within the definite article if one was to attach literal adherence to it.

Unless there was authority clearly holding otherwise, which there is not, I would hold, like Peart J., that both Dr. Cooney and Dr. Duffy can properly fall within the description “the consultant psychiatrist responsible for the care and treatment of the patient concerned”. Although it does not arise in this particular case, I would express the view that in a situation where at the time of the requirement for a renewal order, the consultant psychiatrist in the Central Mental Hospital in the position of Dr. Duffy, that is to say in everyday charge of the patient was temporarily off work for one reason or another be it illness or holidays, etc. the temporary replacement consultant in relation to that patient would fall within the definition. Given that this is an act which in some instances, including this particular instance, is relevant to the important question of detention or release of patients potentially dangerous to themselves and/or to the public, it would be all wrong to give the legislation an interpretation which would leave it in doubt as to who would be entitled to sign a renewal order. In JB v. The Director of the Central Mental Hospital (unreported judgment in the High Court of MacMenamin J. delivered 15th June 2007), the judge said the following:

“When a patient was transferred to the Central Mental Hospital he retained his original doctor and the doctor in the Central Mental Hospital was a specialist dealing with his care in accordance with section 208 of the Mental Treatment Act, 1945. This regime ensured continuity of care. Under the Act of 2001 a patient cannot be admitted directly to the Central Mental Hospital and must be transferred there from another hospital. It is the opinion of Dr. Linehan, and all the other consultant psychiatrists, that a responsible practitioner referred to in the Act is not simply one person but is rather the psychiatrists, not only within the hospital itself, but may include consultant psychiatrists outside the hospital, provided they have a real and continuing part in the care and treatment of the patient. In her view Dr. Hearne comes within this definition.

I accept this proposition as a matter of law as well as medical practice for reasons outlined later.”

It was suggested by Mr. McDonagh that the views of MacMenamin J. were based on section 21(4) of the Mental Health Act, 2001 and that he had misapplied that subsection. I do not intend to comment on that controversy as I am satisfied, at any rate, that MacMenamin J. was essentially influenced by the evidence he heard rather than by the construction of a particular subsection and it is to be noted that he took the same view as Peart J. that more than one person could come within the necessary definition. As I have clearly indicated, I am of that view myself. In another High Court decision referred to in argument WQ v. The Mental Health Commission (unreported judgment of O’Neill J. delivered the 15th May 2007) that judge did express the view that

“A psychiatrist not attached to the approved centre where the person was detained and not involved in the care and treatment of the patient concerned but who was brought in for the purposes of review could not exercise the power of renewal contained in section 15(2) and section 15(3).”

It is sufficient to point out that that clearly was not the factual situation in this case.

For the reasons which I have indicated, I would dismiss the appeal.

 

HSE v MX (a person of unsound mind)

[2011] IEHC 326

JUDGMENT of Mr. Justice John MacMenamin delivered on 29th day of July, 2011
1. Protecting and vindicating the rights of vulnerable people suffering from mental incapacity poses challenges for legislators, courts, and especially the caring professions.

2. A person suffering from such incapacity continues to enjoy individual rights such as the exercise of freewill, self-determination, freedom of choice, dignity and autonomy (see In Re Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79). Speaking generally, the exercise of such rights by all citizens, whether in the private or public domain, is predicated upon, and informed by, clear understanding and cognition; an ability and make decisions in one’s best interest having regard to the interests and rights of others. Where consent to particular forms of medical treatment, and the capacity to give that consent, arise, the issues of capacity and cognition are fundamental. In very exceptional cases, the nature of a patient’s condition may entirely deprive them of the ability to give expression to any decision-making capacity. Such a situation arose in Re Ward of Court (No. 2).

3. But circumstances may also exist where, for example, the very nature of a mental illness clouds understanding, and where the task of decision-making for a patient becomes difficult. Then, where there is a want of capacity to make such decisions, psychiatrists have often found themselves in a position where it was they alone who were cast in the role of having to make choices in the patient’s best interest, albeit, where possible, in consultation with colleagues and family members. Traditionally, in our law, the views of experts in the discipline have justifiably received great weight and respect. In this jurisdiction, we are fortunate that we can place a high degree of trust in our clinicians. This is based on both that tradition and modern day experience.

4. Internationally, however, abuses in psychiatry are not unknown; in some countries it has been used as a mechanism for state oppression of legitimate dissent. As in all disciplines, including the law, psychiatry is in a state of constant evolution where even consensus views of a quarter of a century ago might now be questioned.

5. Also, as in all disciplines, there is a possibility of honest error, for subjective opinion supervening over what should be accepted as established, objective diagnostic criteria, even on issues as vital as legal capacity. A finding of incapacity can have substantial legal and social consequences, and involves a serious curtailment of rights. This has led to diverse approaches. Some international bodies, such as both the Committees of Ministers of the Council of Europe and the United Nations, have sought to adopt universally applicable procedures, intended to ensure that the voice and views of a patient are not only heard but considered. The philosophy behind these international instruments is to ensure that guarantees of equality before the law are given effect (see Article 12 of the United Nations Convention on the Rights of People with Disabilities to which reference is made later in this judgment). In many countries. these values have been given concrete form in the shape of legislation. In 2008 the Government of the day published the proposed heads of the Mental Capacity and Guardianship Bill 2008. This was criticised by health professionals. To date the Bill has not become law. Even a superficial consideration of the learned discussion on some of the issues leaves one with the sense that there exists a substantial gap in understanding between those who seek a “rights-based” approach, and others who lay emphasis upon the challenges in taking care of patients on a day-to-day basis (see (2008) 14. 1 Medico Legal Journal of Ireland 14). It is important to remember that it is doctors, not lawyers, who can cure patients.

6. But, on the other hand, denial or deprivation of procedures to a vulnerable person can have radical consequences, including a loss of many civil rights (see the decision of the European Convention on Human Rights (“the Convention”) in Shtukaturov v. Russia, [2010] ECHR 292 for an apt illustration).

7. In Shtukaturov, the European Court of Human Rights (“ECtHR”) had to deal with legal capacity and enforced hospitalisation and treatment without consent. The applicant had been diagnosed with schizophrenia, and had been deprived of his legal capacity in a decision made without his knowledge at the request of his mother who had become his legal guardian. He was legally prohibited from challenging the decision in the Russian courts, and was subsequently placed in a psychiatric hospital. The ECtHR held that “the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation”. The court held that domestic legislation must provide for a “tailor made response”. The court found that highly abridged the decision-making process depriving him of his legal capacity constituted a disproportionate interference with his private life. In Winterwerp v. Netherlands [1979] 2 EHRR 387 the ECtHR ruled that the capacity to deal with one’s property was a civil right and protected by the Convention. The right to fairness of procedures is also engaged.

8. This case deals with an intended procedure for the treatment of the defendant whom I will call M.X. As will be seen, many of the matters briefly touched on above arise for consideration in this sad case.

9. M.X. was born in 1962. She is currently an involuntary patient in the Central Mental Hospital (“C.M.H.”). Pursuant to the provisions of the Mental Health Act 2001 (“the Act of 2001”), she was transferred there some four years ago suffering from serious psychiatric complaints which caused her to be a source of danger and risk, not only to herself, but also to others. It is necessary therefore to remember at all points that she is seriously ill.

10. M.X has a long and very complicated forensic history. Prior to her current admission to the C.M.H. in 2007 she was previously an in-patient there. In that year her detention was found to be unlawful. She was admitted to St. John of God’s Hospital, but then transferred from there back to the C.M.H. on the 24th May, 2007. There she remains, as what is termed a “civil” patient, i.e. a person neither prosecuted nor convicted of any criminal offence. She is not, therefore, subject to the procedures and safeguards outlined in the Criminal Law (Insanity) Act 2006.

11. The application which is brought in this case is as a result of the concerns felt by the doctors who are treating her. They have sought guidance from the court as to whether certain forms of medical procedure which they deem necessary to ameliorate their patient’s disorder can be lawfully administered. It is important to emphasise therefore that the treating doctors in this case have the welfare of their patient as their primary concern. Thus, what is sought in this case is, essentially, guidance as to statutory interpretation and application.
The Primary Diagnosis
12. The defendant’s primary diagnosis is that she suffers from paranoid schizophrenia and a borderline personality disorder. This condition is particularly severe. It is associated with the risk of extreme violence to others, including children. At the time an interim application was originally brought in December, 2010 she was very unwell and it was thought that a number of months would elapse before her recovery.
The Problems Arising from the Intended Treatment Regime
13. In the latter half of 2010, the doctors originally began to encounter difficulties in treatment. They were administering a number of drugs to counteract the defendant’s psychiatric condition. As part of this, it was necessary, for reasons which will be explained, to obtain blood samples. M.X objected to this. However, she was found by the doctors not to have the capacity to make decisions regarding her own welfare. Through her lawyers she has indicated that she does not consent to this course of treatment, and has made her position clear to those advising her.

14. The medical position is further complicated by a potential life-threatening adverse reaction. This is what is termed the unpredictable idiosyncratic destruction of the defendant’s white blood cells which occurred in response to three different anti-psychotic drugs which were administered to her. This reaction is known as an “agranular oxytosis reaction”. A decline in white blood cell count can have a potentially fatal outcome where, ultimately, a patient may succumb to infection.
The Interlocutory Applications
15. Because of these concerns, in December, 2010, an interim application was made to this Court to permit the administration of a drug regime which necessitated the taking of blood samples as an ancillary to that regime. Interlocutory applications followed, and ultimately the case proceeded to full hearing. On an interim and interlocutory basis this court granted permission for the administration of the treatment and the taking of blood samples, but only in circumstances where there was an entirely independent verification by an independent psychiatrist, Dr. Ian Bownes, who works outside the jurisdiction. This was done so as to verify that the medical regime was for the patient’s benefit. It should, in no sense, be seen as any reflection on the treating doctors. Dr. Bownes was identified by the defendant’s legal advisors, and thus there was no question as to his independence. He indicated that the course of treatment envisaged was entirely appropriate and in the patient’s welfare. On the basis of this evidence this court permitted the treatment to proceed.
The Definitions of Treatment: “Mental Disorder” and “Mental Illness”
16. In what follows, it is now necessary to consider a number of definitions contained in s. 2 and s. 3 of the Mental Heath Act of 2001 (the Act), and the identifiable effect of a range of criteria to be relied on by clinicians in decision-making, which are identified in section 4.

17. The term “treatment” is defined at s. 2 in the following manner:-

“‘Treatment’, in relation to a patient, includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder.”
“Mental disorder” is defined at s. 3 of the Act in the following way:-
“(1) In this Act ‘mental disorder’ means mental illness, severe dementia or significant intellectual disability where –
(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or
(b) (i) because of the severity of the illness, disability or dementia, the judgement of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.

(2) In subsection (1) –
‘mental illness’ means a state of mind of a person which affects the person’s thinking, perceiving, emotion or judgement and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;

‘severe dementia’ means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression.” (Emphasis added).

18. That the defendant is suffering from such a disorder is not in question. The intent of the treatment was and is undoubtedly to ameliorate her condition. In making decisions as to care and treatment, the Act seeks to apply a “best interests” test. The question is whether that test, in conjunction with the term “treatment”, is overly general or “open-ended”. What procedural safeguards are contained in the Act? I will return to this later.
19. Section 4 of the Act of 2001 provides:-

“(1)In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.
(2) Where it is proposed to make a recommendation or an admission order in respect of a person, or to administer treatment to a person, under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and be entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this subsection.

(3) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.”

20. How does that Act apply here? One first looks to the expert opinions expressed within this statutory framework. A “best interests test” may have objective and subjective dimensions. In the first, one looks to what steps are actually necessary as a remedy; in the second, one looks to the patient’s view, both now and if she had had the capacity to make judgements in her own interest. Dr. Paul O’Connell, the consultant psychiatrist who has treated the patient for some time, explains that the proposed treatment for the patient, including the giving of anti-psychotic medication, is directed towards relieving her mental disorder. It is not in dispute that the treatment is, in this sense, in her “best interest”. The problem, however, lies with what accompanies the treatment. For this patient, the drawing of blood should form part of or be ancillary to the actual administration of anti-psychotic medication. Such medication cannot be safely administered to the defendant without blood tests being conducted at regular intervals in order to detect the possibility of an adverse reaction. The uncontested medical evidence, therefore, is that the administration of the medication – even if differentiated from the procedure as a whole – would ameliorate the mental disorder from which the defendant is suffering, and that the associated blood tests are necessary to safeguard her life, to restore her to health, to alleviate her condition and relieve her suffering.
21. Does the law allow for a broad reading of the word “treatment” when those treating a patient conclude she cannot consent? How far does a medical decision that treatment is warranted in the patient’s best interest go when the patient cannot object because she lacks the capacity to do so?

22. As a first step, one turns next to the definition of consent contained in the Act. That definition is rather circular. Section 56 provides:-

“In this Part ‘consent’, in relation to a patient, means consent obtained freely without threats or inducements, where –
(a) the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment; and
(b) the consultant psychiatrist has given the patient adequate information, in a form and language that the patient can understand, on the nature, purpose and likely effects of the proposed treatment.”

23. But, as has been mentioned earlier, the medical and psychiatric view is that the defendant lacks the capacity to consent; thus, by reference to s. 56(a), the court must proceed on the basis that she, as a patient, is incapable of understanding the nature, purpose and likely effects of the proposed treatment.
24. In such circumstances s. 57 comes into play. It provides:-

“(1) The consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent.
(2) This section shall not apply to the treatment specified in section 58 , 59 or 60.”

25. Subsection (2) deals with the question of safeguards for certain forms of very serious medical procedures laid down under the Act. It does not contain similar review provisions with regard to “treatment”.
26. In considering the terms of the Act of 2001, it was necessary, even at the interlocutory stages, to balance the patient’s right to life, dignity, autonomy and her welfare interests. I concluded that the balance favoured the administration of such treatment on an interlocutory basis. These are, of course, constitutional values, but these are embodied in statutory form in the framework of the 2001 Act. They were considered in depth in Re Ward of Court (No. 2). The irony of the current situation is that the medical consensus is that the course of treatment, to which the patient so strongly objects, is undoubtedly in her own best interest. It is a classic “Catch 22” situation.

27. The dilemma facing the treating clinicians was, and is, that, in order to treat the defendant’s schizophrenia appropriately and safely with anti-psychotic medication, it is necessary to continuously monitor her. This, in turn, necessitates obtaining a full blood count (“fbc”) at regular intervals in order to safeguard against any potentially fatal risk of a sudden drop in white blood cell count. The minimum standard considered appropriate in these circumstances is to adopt a system similar to the monitoring regime used for patients who are treated with an anti-psychotic drug called clozapine. This involves monitoring on a weekly basis. Additional tests would be required in the event that the patient demonstrated any sign of sepsis such as fever, malaise or upper respiratory symptoms. The risk of a decline in white blood cell count is idiosyncratic; it does not depend on the dosage of the anti-psychotic medication, or on the duration of the treatment. Consequently, this reinforces the need for ongoing monitoring.
The Procedures Involved
28. The procedure which the hospital proposes to continue requires venepuncture (that is the obtaining of blood samples from a vein by syringe). Such samples, comprising between 5 and 10 millilitres of blood, are to be collected by a medical practitioner or nurse who has training and expertise. It is necessarily invasive. The defendant unfortunately is unwilling to cooperate. Therefore, it has been deemed necessary that she be restrained by nursing staff and that her arm be secured in a form of physical restraint while the samples are being taken. Were the patient to struggle, the doctor attempting to collect the blood might be unable to obtain a safe venepuncture. The patient might need to be sedated. In such circumstances the procedure might have to be undertaken at St. Vincent’s Hospital under anaesthetic advice or supervision. As can be seen, therefore, the choices involved are both complex and stark.
The Risks Attached to Ongoing Treatment
29. The risks associated with drawing a blood sample from a patient are potential bruising and laceration, along with a low level of pain. However, in the circumstances of this case, in the absence of restraint, there is also the risk of third party injury to medical or nursing staff by the patient’s violent reaction. This could result from needle stick injuries. In the event that sedation or anaesthesia are required, there would be additional risks, most notably those associated with respiratory complications. Furthermore, the use of anti-psychotic medication may, in itself, trigger a decline in white blood cell count (leukopaenia). Some anti-psychotic drugs appear to be better tolerated by the defendant than others. The most notable of these are called olanzapine, quetiapine and chlorpromazine. The current treatment of choice is a drug called zuclopenthixol. The patient has previously received an extensive range of oral anti-psychotic medications, some of which have been associated with a decline in white blood cell count. Such medications have been associated in the literature with serious neuromotor side effects. In the case of the defendant, the approach is necessarily limited by the severity of her psychosis including, unfortunately, the risk of substantial violence arising from non-compliance.

30. Dr. O’Connell says that the particular range of events that have given rise to this case are, in his experience, exceptional. There is a risk that if the patient’s white blood cell count declines to a significant extent it might be necessary to seek assistance from a specialist in haematology. There remains the risk that the hospital staff will have to calibrate and balance the use of the medication (which may lower the white blood cell count) in tandem with haematological support directed to elevating that count. He states his firm intention is to do everything that is clinically appropriate in what is, both for him and his colleagues, a challenging and serious case.
The Patient’s Capacity to Consent
31. The treating psychiatrists testify that they have given lengthy consideration as to whether or not the defendant currently has the capacity to consent to, or refuse, the blood tests proposed in relation to monitoring her anti-psychotic condition. In our law, gathering and accessing the evidence and the procedure for determining of capacity are often a purely medical matter. There have been cases where the matter has come into closer legal focus such as Fitzpatrick v. F.K. [2009] 2 IR 7. In other systems it has been found to engage procedures necessitating a decision by a legal or quasi-legal forum. This may involve the appointment of a personal advocate or guardian to vindicate the patient’s rights and interests. The availability of appropriate modes of determination, review and appeal are serious issues. In the instant case, the position has been addressed in the first instance by obtaining Dr. Bownes’s views. As an independent psychiatrist, he has affirmed that the defendant lacks the capacity to make judgements in her own medical interest. The consequence of this is that, for present purposes, and in present circumstances, the court must approach matters on the basis that the defendant is not capable of fully understanding the nature, purpose and likely risks of the proposed treatment. Her want of understanding is said to be made up of different components. The clinical view is that she cannot form a balanced judgement in relation to the treatment being afforded to her. She continues to see the staff and treating psychiatrists as a threat. She is said to be delusional, and while she does not admit to hallucinating, there is a strong view that she is, in fact, doing so.
Dr. Harry Kennedy’s Evidence
32. Dr. Harry Kennedy, the well-known consultant forensic psychiatrist, is the Executive Clinical Director of the National Forensic Mental Health Service in the Central Mental Hospital. He corroborates this evidence as to want of capacity. He states that the defendant’s schizophrenia is treatment – resistant and has responded fully only to medication by clozapine. The defendant cannot tolerate clozapine due to the rare but recognised side effect of suppression of white blood cells. She also has had partial reactions to other anti-psychotic drugs.

33. Dr. Kennedy describes other elements of the defendant’s symptoms which are relevant to the question of her own life and safety, and the life and safety of others. Specifically, the defendant has homicidal preoccupations arising from persecutory delusions and hallucinations. Unfortunately, these focus particularly on children in general, and sometimes, in particular, on the children of those who come into contact with her. Then, she loses insight and lacks the capacity to give or withhold consent to treatment. She becomes agitated, attacking doctors and nurses and causing them significant injuries. On some occasions, it was decided that she should be placed in seclusion for her own safety and that of others. This seclusion has sometimes been for prolonged periods and, the court has been told, monitored by the Inspectorate of Mental Health Services. There is no evidence yet before the court as to the length of these placements. However, such placements necessarily involve a serious deprivation of rights. Concern as to public safety or well-being does not lead to an entire abrogation of constitutional rights. There is no evidence that there has been any such abrogation in this connection, however.

34. The witnesses point out that at times in the past the defendant actually permitted blood tests. What triggered the original application to this court was her refusal of medication; as a result she went unmedicated. Her physical and mental condition deteriorated. She had received her last full white blood count two weeks prior to the first application to this court in December, 2010. She had received injections of clopixol on a number of dates in late November, but no further medication was then administered because of her objection. The clopixol injections had been administered after a second opinion from Dr. Brendan Kelly, a consultant psychiatrist in the Mater Hospital.

35. Dr. Kennedy draws attention to the fact that while the Act of 2001 may permit treatment without consent, there is a possibility it may not permit the drawing of a blood sample from the defendant without such consent. This is because the definition of the term “treatment”, contained in the Act, allows for the administration of remedies intended for the purpose of ameliorating a “mental” disorder. The question arises as to whether the health professionals have the legal power or authority under the Act to actually restrain patients for this purpose, or to draw blood under medical supervision in circumstances such as those which arise here. Is this “ameliorating a medical disorder”?
Additional Risks in Administering Treatment
36. That there are other hazards is shown by the fact that the patient is at some risk of harming herself as well as others. She has placed implements and potential weapons in and about her person. She has planned assaults on medical professionals, one of which had the potential for a fatal outcome. She has thrown cups of hot coffee or water over staff members. In the past it appears she harboured thoughts of killing her own son and daughter. She is now subject to an intensive regime of nursing. It is thought her ultimate goal might be to fatally injure some of the medical persons involved in her treatment. The patient has a history of suicidal ideation and still has some homicidal intent towards her son and daughter. She had attempted to assault those involved in her care with sometimes dangerous implements. This necessitated remedial action from health professionals.
The Defendant’s Personal Circumstances
37. This is not a case where the application is brought by family members. The form of treatment proposed here is that suggested by doctors, not the family. The defendant is separated from her husband who has remarried. She has two children. Her son has unfortunately been admitted for long term psychiatric care. She has substantial difficulty in relating to those who otherwise would be close to her. She is occasionally visited by relations but, it appears the day-to-day task of taking care of her has, for a considerable time past, fallen mainly on the hospital staff. The evidence is that while she may be able to register and retain treatment information, her judgement is nonetheless impaired by her overarching persecutory delusions, within which she regards her treatment from psychiatrists and nurses as threats and sources of mockery to her.

38. As a result of her illness, the defendant is in an isolated position. She is undoubtedly a vulnerable person. Her detention is involuntary and necessary. She is not a ward of court. The decision as to incapacity bears on other decisions where, if she had full capacity, she would be entitled to decline the treatment on the basis of her right to autonomy, as recognised in Re Ward of Court (No. 2). The determination in this case as to capacity is “decision specific”, but there is no evidence as to its range beyond this case. In this jurisdiction a determination as to incapacity in this type of case does not require court approval, even though there may be a loss of fundamental rights. From the standpoint of a patient, there is a duty to ensure and to maximise patient autonomy and to protect those who lack such capacity. On the evidence in this case, the clinicians are not in any doubt as to the patient’s incapacity, nor can the court be. Thus the court is in a position to make a best interests assessment based on their views. But such choices undoubtedly involve a curtailment of the right to liberty and autonomy (see North Western Health Board v. H.W. [2001] 3 IR 622). Clinicians and courts must have regard, not only to the individual position of the patient, but the extent to which any right may be curtailed or abridged, based on duties to the patient, to others or to the public at large. The values engaged here involve the necessity to protect life and health and the protection of other interests including those of third parties, perhaps the prevention of suicide and the maintenance of ethical integrity.
Does “Incapacity” Prevent Bringing Proceedings by a Patient?
39. A further difficulty which arises in this case is that the court is not in a position to identify a person (other than her lawyers) who could act in the informal capacity as “personal guardian” or support decision-maker, a position proposed for the protection of vulnerable persons in the Mental Incapacity and Guardianship Bill 2008. The determination as to the defendant’s incapacity is, here, psychiatric, one that is undisputed.

40. However, in other cases, and even perhaps this one, there may arise an additional uncertainty; that is the extent to which a patient can be deemed to have capacity even to instruct a solicitor and counsel in circumstances where she has been found to suffer from incapacity. I do not raise this point in any spirit of criticism in this case. However, it is a point which has been raised and considered in decided authorities (see the judgment of the Supreme Court in E.H. v. The Clinical Director of St. Vincent’s Hospital and Others [2009] 3 IR 774).
The Defendant’s Case on the Legal Issues
41. It will be recollected that the kernel of this case is as to the interpretation of the term “treatment”. Counsel for the defendant submitted that the term must be strictly or narrowly interpreted, and that such a construction is necessary in light of the fact that there are at stake here, the curtailment of a number of fundamental rights and interests without adequate procedural safeguards being embodied in the statute. The Act contains no safeguards or review procedure with regard to the term “treatment”. This is in contrast to its provisions with regard to “medicine” where there are such mechanisms. By way of illustration in the case of medicine one can turn to s. 60 of the Act of 2001. This provides as follows:-

“60.Where medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for a continuous period of 3 months, the administration of that medicine shall not be continued unless either –
(a) the patient gives his or her consent in writing to the continued administration of that medicine, or
(b) where the patient is unable or unwilling to give such consent –

(i) the continued administration of that medicine is approved by the consultant psychiatrist responsible for the care and treatment of the patient, and
(ii) the continued administration of that medicine is authorised (in a form specified by the [Mental Health] Commission) by another consultant psychiatrist following referral of the matter to him or her by the first-mentioned psychiatrist,

and the consent, or as the case may be, approval and authorisation shall be valid for a period of 3 months and thereafter for periods of 3 months, if, in respect of each period, the like consent or, as the case may be, approval and authorisation is obtained.” (Emphasis added).
The safeguard is clearly for the administration of medicine.
42. The Act is silent on any review for “treatment”. The theoretical and perhaps real consequences of this in other cases could be serious. In that it could result in an endless series of fbc tests, necessitating restraint, against the patient’s strong objection. This would raise the question whether a patient was being exposed to inhuman and degrading treatment prohibited by the Constitution and Article 3 of the Convention. Should “treatment” then be strictly construed? This again raises the question of fair procedures including audi alterem and a right of review or appeal.

43. The defendant’s case is that it is not permissible for the courts to engage in a form of “legislation” by adopting an over-purposive interpretation of the term “treatment”, thereby permitting the taking of samples in the absence of legal protections. This is so no matter how benign the motivation may be, as here. It is contended that the “best interests” test in s. 4 can be vague and imprecise. In other circumstances it might allow for a long series of invasive procedures without adequate safeguards. Counsel submits that it is not permissible, even for “benign” reasons, to engage in the rewriting of a statute, and that in certain circumstances a court must favour a strict or narrow interpretation in the vindication or protection of fundamental rights.

44. There is much force in this submission. In so observing, I mean no reflection on the treating psychiatrists in this case. However, one must have regard to other contingencies, in other cases, and other institutions. The difficulty with a simple purposive interpretation is that it might become too wide. There are a range of “treatments” which might be permissible without safeguards. As has been found in other jurisdictions, trust, without mechanisms of review and verification, may be abused.
Safeguards in Other Instances such as Psychosurgery, Electro-Conclusive Therapy and for Children
45. It is true, of course, that certain forms of procedure, as defined in the Act, are subject to legal safeguards. Section 57(1) deals with forms of treatment not requiring consent. This is subject to the exceptions of section 57(2). But these are not relevant here. The first, identified as s. 58 of the Act, is psychosurgery, which is not to be permitted unless the patient gives his or her consent in writing and then that is submitted to and authorised by a tribunal, the treating psychiatrist having first notified the Mental Health Commission in writing of the proposal. A tribunal to which such a decision is referred by the Mental Health Commission may either permit it or refuse it. Decisions of this nature are subject to an appeal to the Circuit Court. Psychosurgery is defined as meaning any surgical operation that destroys brain tissue or the functioning of brain tissue and which is performed for the purposes of ameliorating a mental disorder (section 58(6)).

46. Similarly, s. 59 provides for safeguards in the case of a programme of electro-convulsive therapy.

47. Section 61 contains similar provisions in relation to the administration of medicine to children for the purposes of ameliorating their mental disorder. While the side bar heading in the Act to that section refers to “treatment” of children in respect of whom an order under s. 25 is in force”, I can find nothing in the Act which equates the terms treatment and the administration of medicine. Indeed, the contrary is the case.

48. For completeness, I also refer to s. 69 of the Act, which provides as follows:-

“(1) A person shall not place a patient in seclusion or apply mechanical means of bodily restraint to the patient unless such seclusion or restraint is determined, in accordance with the rules made under subsection (2), to be necessary for the purposes of treatment, or to prevent the patient from injuring himself or herself or others and unless the seclusion of restraint complies with such rules.
(2) The Commission shall make rules providing for the use of seclusion and mechanical means of bodily restraint on a patient.”

The Approach to Literal Interpretation
49. Salinas de Gortari v. Smithwick [1999] 4 IR 223 is an illustration of the strict or literal approach to interpretation where fundamental rights are engaged. Such interpretation of a statute led to a lacuna or omission in the context of provisions allowing for evidence taken by a District Judge in Ireland to be used in a foreign criminal investigation. The omission was that, although witnesses could be compelled to give evidence, they could not subsequently be held in contempt for a failure to answer a question put to them during such procedure. McGuinness J. considered that a power to find and punish for contempt, not provided for in the legislation, could not be “read into” the section as it would be an impermissible writing of the Statue and thus “offend against the principle of strict interpretation of penal statutes”. The reference to a penal statute is important as it imports with it the concepts of criminal process, and the risk of pain and punishment. Fundamental rights are engaged such as that of liberty and fair procedures.
50. Counsel for the defendant here submits that such interpretation should be given to the term “treatment” because what is essentially at issue are rights of self-determination, human autonomy and liberty (In Re Ward of Court (No.2)). The defendant has been denied these constitutional rights and a right to full, fair procedures. Thus it is submitted such interpretation would demand that the common law presumption in favour of statutory construction to protect liberty be applied to protect and vindicate her rights. Of course, such a common law presumption is now to be read in the light of the constitutional provisions which place such fundamental rights on a constitutional plane.

51. In Director of Public Prosecutions v. Gaffney [1987] I.R. 173 Henchy J., speaking in the context of a statutory power of an arrest, one which obviously curtailed the right to liberty, said at p. 181:-

“[T]he right of arrest without warrant given by s. 49, sub-s. 4 of the [Road Traffic Act] 1961 [is a] substantial [invasion] of the personal rights enjoyed before the enactment of these provisions and there should not be attributed to Parliament an intention that such personal rights were to be curtailed further than the extent expressed in the Statute.”

The Process of Interpretation to be Applied
52. Should such an approach apply here in light of the rights issues involved? In what follows, I now focus on an analysis of the precise words of the definition of “treatment”, this will be followed by a consideration of other provisions in the Act as an aid to interpretation. I will then consider the constitutional values which are embodied in the Act as an aid to such interpretation. Finally, I will return to the question of interpretation of the Act in a manner “compatible with constitutional duties and those obligations which arise “under the Convention provisions” (s. 2 of the European Convention on Human Rights Act 2003). Here it will be necessary to at least identify matters arising from “the duty of every organ of State, including the plaintiffs, and this Court, to perform its functions in a manner compatible with the obligations under the Convention provisions (s. 3 of the European Convention on Human Rights Act 2003). The court is enjoined to “take notice” of judgments of the ECtHR and decisions of the Committee of Ministers established under the statute of the Council of Europe in this process. In interpreting the law, in applying a Convention provision, the court must take due account of the principles laid down in such judgments or declarations (s. 4 of the European Convention on Human Rights Act 2003).
I preface what follows by the observation that the word “treatment” in the section is ambiguous. It is capable of being interpreted broadly or narrowly. It is necessary then to look to the purpose of the enactment. It is to be presumed that the interpretation which gives effect to the purpose of the Act is that intended by the legislative, s. 5 Interpretation Act 2005. The meaning that best promotes the purpose is that to be favoured. See Statutory Interpretation in Ireland – David Dodd, Tottel, P. 6.15.
The Words of the Section
53. The first striking feature of the definition of “treatment” is that it is not intended to be all encompassing. The words used are illustrative: the definition “treatment” includes the identified measures which may be “physical, psychological or other”. There may also be other remedies not enumerated or identified in the Act. One test of the intent of the legislature is whether a definition is intended to exclude as well as include – is there an identification by way of limitation? Here the answer is no. These are not words of delimitation but illustration. The intent of the legislature is evident by virtue of the fact that the term “treatment” is not exclusively defined, but rather contains a number of illustrations as to forms which such treatment may take for the purposes of ameliorating a mental disorder. There may be “other” remedies. One cannot read this definition as reflecting an intent to preclude other forms of treatment not enumerated in the section. The consequence of the interpretation urged on behalf of the defendant in this case would be, in fact, to preclude the possibility of the form of remedial treatment envisaged here used as an ancillary to the regime of “medicine” because of the risks inherent in having one without the other.
Construing the Definition of “Treatment” in the Light of Other Provisions in the Act: The Legislative Intent
54. When one turns to other provisions of the Act of 2001 there is reinforcement for a broader interpretation. Ultimately, the values or rights at stake, be they expressed in constitutional or statutory terms, are the values of “health” (s. 57(1)) and of life itself. The measures to restore the defendant’s health, if not appropriately monitored, might place life at risk. Here, the terms of s. 57 of the Act of 2001 are particularly á propos. To reiterate, it provides:-

“The consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering …[when] the patient concerned is incapable of giving such consent.”
Thus, for reasons I will now explain, the intent of the Oireachtas in this Act is to give priority to the constitutional values of the patient’s life and health. The effect of this section is that a clinician may administer “treatment”, regardless of capacity or incapacity in cases of necessity where life is at stake.
55. The evidence before the Court is that the “treatment” is necessary to restore the patient’s health and to alleviate her condition. It is to relieve her suffering. Surely it would be an absurd and certainly unintended interpretation, that those treating the defendant to restore her health would be precluded from taking such measures as were necessary in order to safeguard the life of the patient in so doing? (See s. 5 Interpretation Act 2005).
Interpreting the Act in Accordance with the Constitutional Rights Engaged
(a) The hierarchy of values

56. While section 4(2) of the Act of 2001 enjoins clinicians when making decisions concerning care or treatment to have “due regard” to the rights of that person to “dignity, bodily integrity, privacy and autonomy”, these statutory provisions must, in this case, be read in accordance with the constitutional status which is given in the Act to the value of a patient’s life as prioritised.

57. I now briefly refer to legal authorities which identify this ordering or harmonising of the value of the patient’s life.

58. As long ago as the Attorney General v. X [1992] 1 IR 1, Finlay C.J. observed that there may be instances where it is necessary to prioritise constitutional rights, and were there to be an interaction of such rights not capable of being harmonised, then a right to life would take precedence over any other right.

59. The defendant enjoys a constitutional right to protection from inhuman or degrading treatment (see The State (C) v. Frawley [1976] 1 I.R. 365); she enjoys a right to bodily integrity (Ryan v. The Attorney General [1965] IR 294), such that she should be protected from unnecessary physical invasive treatment. But when one adopts the Constitution as a framework of reference for interpretation, it is clear that the primary constitutional values engaged are the necessity for safeguarding the patient’s life and health. I think this applies in the context of the word “treatment”. In the balance, and on the facts om this case, it is the duty of the court to make the best interests decision. The patient lacks the capacity to make decisions in accordance with the terms of the Act. The court must apply an objective test as to best interest. There is no evidence that the defendant’s wishes would be otherwise if she enjoyed full capacity. The evidence coercively shows that the proposed medical regime is in her best interest, at this time. I find that at present the vindication of these rights must take precedence over autonomy and liberty. I emphasise the word “balance” however, it must be applied on the facts of the case and at the time this judgment is delivered. In all this, it must be recollected fair procedures have been employed in these hearings.

60. The duty of the court is to apply a hierarchy of constitutional values embodied in the statute, giving priority to that which comes highest. I think that there is recognition of this reality in the decision of the Supreme Court in Croke v. Smith [1998] 1 I.R. 101. There, Hamilton C.J. spoke of the obligations to respect and to uphold the rights of persons with incapacity. He observed that those vested with the powers and obligations under such Acts must “act in accordance with the principles of constitutional justice, and are not entitled to act in an unlawful manner, are not entitled to act arbitrarily, capriciously or unreasonably and must have regard to the personal rights of the patient, including the right to liberty which can be denied only if the patient is a person of unsound mind and in need of care and treatment who has not recovered and must be particularly astute when depriving or continuing to deprive a citizen, suffering from mental disorder of his or her liberty.”

61. Croke is authority for the proposition that legislation in this category should be interpreted in accordance with the Constitution, should favour the validity of the provisions of the Constitution in cases of doubt, and that such legislation should have regard to the fact that the presumption of constitutionality carries with it, not only the presumption that the constitutional interpretation or construction was that intended by the Oireachtas, but also that the legislature intended that procedures, permitted under the Act, will be conducted in accordance with the principles of constitutional justice (see the judgment of Hamilton C.J. at p. 123 of the report). This again raises the issues of fairness in decision-making on fundamental matters.

(b) Authorities on purposive interpretation

62. A further feature of the constitutional framework of the Act of 2001 necessitates recognition of what is termed in the Constitution itself as a recognition of “differences of capacity, physical and moral and in social function” (Article 40.1). This has consequences for the process of interpretation.

63. This Court is constitutionally enjoined and bound to apply the doctrine of precedent. There is clear authority as to the manner in which statutes designed for the protection of vulnerable persons should be interpreted. They are generally to be construed in a “purposive” manner or broad manner in the interests of the patient. In this context I will use both terms as it is the broad interpretation which gives effect to the legislative intent for purpose. This would not always be so. This approach is perhaps best identified in the judgment of O’Byrne J. in In Re Philip Clarke [1950] I.R. 235 in language which now might be thought to be very much of its time:-

“The impugned legislation is of a paternal character clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and wellbeing of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was no doubt present in the minds of the draughtsmen when it was proclaimed in Art. 40.1 of the Constitution that, although all citizens, as human beings, are held to be equal before the law, the State may, nevertheless, in its enactments have due regard to differences of capacity, physical and moral and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual ensured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others.”
64. That our courts are to adopt a purposive interpretation was recently re-affirmed by the Supreme Court in E.H. v. The Clinical Director of St. Vincent’s Hospital & Ors. [2009] I.R. 774; Gooden v. St. Otteran’s Hospital (2001) [2005] 3 I.R. 617; and in T.O’D. v. Kennedy [2007] 3 IR 689. In the latter case, Charleton J. put matters in this way at p. 703:-
“Section 4 of the Mental Health Act 2001, infuses the entire of the legislation with an interpretative purpose as well as requiring the personnel administering the Act of 2001 to put the interests of the person to be treated as being paramount with due regard to those who may be harmed by a decision not to treat that person.”
65. This a well established approach to interpretation. It is, of course, to be viewed in the light of the guarantee contained in the same article of the equality of all citizens before the law.
Summary and Conclusion
66. I have sought to construe the section by analysis of its intent, by reference to the Act as a whole, by reference to the constitutional values involved and by reference to decided authority. On these approaches, the balance falls squarely in favour of a purposive interpretation.

67. In summary, I think a broad construction of the word “treatment” will have the following consequences: it will respect the principles that allow for a broad interpretation; it will have regard to the other provisions of the Act; it will respect and reflect the constitutional values involved and the precedents which bind this court. But it must be emphasised it should be compatible with the Constitution itself and the terms of ss. 2, 3 and 4 of the European Convention on Human Rights Act 2003. I conclude that, after these hearings, the Court in its interpretation of the Act, and in the assessment of the defendant’s best interest, should allow for a medical procedure which, albeit invasive, is ancillary to, and part of the procedures necessary to remedy and ameliorate her mental illness or its consequences. Clearly “treatment” could not include measures or procedures which are entirely unrelated to a patient’s mental illness.

68. Thus, applying these principles, I consider the obtaining of fbc’s as part of, and ancillary to the treatment and medicine regimes in this case is lawful, in the patient’s best interest, and in accordance with the Act. As will be explained, there is a proviso to this finding. It is not to be interpreted as open-ended. I will first refer briefly to persuasive authorities from other jurisdictions which assist on the question of interpretation and reinforce the conclusions just outlined.
Persuasive Foreign Authorities on the Same Question
69. An illustration of this same interpretative method can be seen from a number of United Kingdom authorities. The legislation there more easily allows for a purposive interpretation of permissible forms of treatment. Originally this was the United Kingdom Mental Health Act 1983, later amended. The task of those interpreting that legislation was eased, because in that the Act it was provided that a patient suffering from a mental illness might be admitted in circumstances which would make it appropriate for him or her to receive “medical treatment in a hospital” (section 20(4)). The term used in that, and later amending legislation, was quite frequently that of “medical treatment for mental disorder” (see, for example, s. 57(1)) of the same Act. “Treatment” was defined in s. 145 of the legislation as “medical treatment” including nursing and also including “care habilitation and rehabilitation under medical supervision”. I should observe that the facts of this case are not entirely dissimilar from the decision of the Court of Appeal in R. (on the application of Wilkinson) v. Broadmoor Hospital [2002] 1 WLR 419

70. Nonetheless, a number of the observations by courts in the neighbouring jurisdiction are of some assistance in identifying circumstances in which a broad interpretation may be permissible, and when it is not.

71. In B. v. Croydon Health Authority [1995] Fam. 133, the Court of Appeal had to consider whether tube feeding a patient with a psychopathic disorder who was refusing to eat constituted medical treatment for the purposes of the Mental Health Act 1983. Hoffman L.J. rejected the argument that every individual element of the treatment being given to the patient must be shown to be directed to his mental condition as being “too atomistic”. He expressed the view that one has to look at the treatment as a whole, so that a range of acts, ancillary to the core treatment, would fall within the definition. The court emphasised that it was not necessary that every act which formed part of the treatment must, in itself, be likely to alleviate or prevent a deterioration of the disorder. For instance, nursing and care concurrent with the core treatment, or as a necessary prerequisite to the treatment, or to prevent the patient from causing harm to himself or to alleviate the consequence of the disorder, were all, in that court’s view, capable of being ancillary to a treatment calculated to alleviate or prevent a deterioration of the disorder. The judge observed at p. 139:-

“It would seem strange if a hospital could, without the patient’s consent, give him treatment directed to alleviating a psychopathic disorder showing itself in suicidal tendencies, but not without such consent to be able to treat the consequences of a suicide attempt.”
72. In the same case, Neill L.J. observed the difficulty in practice for those who treated a patient to draw a clear distinction between procedures, or parts of procedures, which were designed to treat the disorder itself, and those procedures, or parts of which were designed to treat its symptoms and sequelae. This too is an identification of the general parameters which come within the range of contemplation of treatment under the Act of 2001.
73. Further illumination can be obtained from the judgment of Charles J. in the case of G.J. v. The Foundation Trust and Others [2010] 3 WLR 840. By that time, the term “medical treatment” had been further referred in amending legislation (give ref.) so as to read:-

“(1). . . ‘medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care, but see also subsection (4) below . . .”
“(4)Any reference in this Act to medical treatment in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate or prevent worsening of, the disorder or one or more of its symptoms or manifestations.”

74. In dealing with these definitions, Charles J. considered that:-
(a) A range of acts ancillary to the core treatment of the mental disorder may be considered to fall within the definition of medical treatment for medical disorder;
(b) Treatment for mental disorder may include treatment for the symptoms of mental disorder;

(c) Treatment for mental disorder may also include a treatment for the physical consequences of a mental disorder;

(d) If there is no proposed treatment for the core mental disorder it will not be lawful to detain a patient to treat the physical consequences of his disorder;

(e) Treatment for physical disorder will not be treatment for mental disorder where the physical disorder is unconnected with the mental disorder;

(f) If the physical disorder is unconnected with the mental disorder, then the treatment of the physical disorder can only be considered “treatment for mental disorder” if such treatment is likely to directly affect the mental disorder.

Summarising the position in the light of the provisions in the U.K, Charles J. said at para. 54:-
“I agree that from the above propositions it can be concluded that: (a) whilst treatment for mental disorder can include both medical and surgical treatment for the consequences of mental disorder- such as treatment for self-injury or self-poisoning; (b) this principle or approach does not extend to the medical or surgical treatment of unrelated physical conditions where that treatment will not impact on the pre-existing mental disorder.” (See also NHS Foundation Trust v. P.S. [2010] 2 FLR 1236). (See generally, Hale, Mental Health Law, (5th ed, 2010), pp. 196 et seq.)

Safeguards
75. The Constitution and the Convention are significant in two separate ways. In a “positive” sense they lead to an interpretation consistent with the values enshrined in the Constitution and the ECHR itself. In a negative or protective sense, it raises the question as to whether other measures or safeguards are necessary in order to ensure compliance with the Constitution and the Convention. The constitutional and Convention rights engaged are quite fundamental. What is at stake here includes the prohibition of inhuman and degrading treatment, the right to autonomy and liberty, the right to fair procedures and rights to an effective remedy and to prohibition on discrimination. In this case, one might well ask, whether, if at all, the rights which are in question and procedures to vindicate them could differ whether they be derived under the Constitution or the Convention. Here it may be apposite to recollect Costello J.’s observation in Doyle v. Croke (Unreported, High Court, Costello J., 6th May, 1988) that the courts should seek to correlate the nature of the fair procedures and the nature of the scope of the decision to which they relate.
76. On behalf of the defendants it has been pointed out that under the Convention the safeguards which might arise in cases of this type (and in this case) include: Article 3, prohibition of torture; Article 5, right to liberty and security; Article 6, right to fair trial on matters of civil rights; Article 8, right to respect for private family life; Article 13, right to an effective remedy; Article 14, prohibition of discrimination; these rights may arise for consideration if the Act itself, or perhaps if our law as to inherent jurisdiction of the courts, do not provide for procedures for the vindication of such civil rights. If such safeguards are necessary are they found within the four walls of the Act? A court is not entitled to legislate, however it may be that there are exceptional circumstances where, even in the absence of legislation, the court may invoke its inherent jurisdiction in an individual case so as to give effect to constitutional or Convention duties. But this cannot supplant the need for legislation where it is necessary. Just as it is the duty of a court to apply the law, it may be necessary for the legislature to legislate. Only in exceptional cases a court may resort to inherent jurisdiction, or perhaps to identify a less formal or less expensive mode of procedure which might ensure guarantees are vindicated.

77. As can be seen, this judgment is confined to the issue of interpretation of the statute. It is important to emphasise, however, that this was not the entire range of the defendant’s case.

78. It remains, therefore, to deal further with the statutory safeguards which are contained in the Act. In one sense this issue arises almost independently of whatever interpretation is put on the term “treatment”, be it strict or purposive. In another sense, however, it is necessary that the Act be interpreted and applied in accordance with the Constitution and decisions of the ECtHR which give expression to the values contained in that instrument. With respect to the constitutional rights involved, it might be thought that the passage which I have quoted earlier from Croke has necessary consequences.

79. The extent to which a court should have regard to international instruments was touched on in the decision of Costello P. in R.T. v. Director of Central Mental Hospital [1995] 2 I.R. 65. That judge expressed himself in this way.

“The reasons why the Act of 1945 deprives persons suffering from mental disorder of their liberty are perfectly clear. It does so for a number of different and perhaps overlapping reasons – in order to provide for their care and treatment, for their own safety, and for the safety of others. Its object is essentially benign. But this objective does not justify any restriction designed to further it. On the contrary, the State’s duty to protect the citizen’s rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder. So, it seems to me that the constitutional imperative to which I have referred requires the Oireachtas to be particularly astute when depriving persons suffering from mental disorder of their liberty and that it should ensure that such legislation should contain adequate safeguards against abuse and error in the interests of those whose welfare the legislation is designed to support. And in considering such safeguards regard should be had to the standard set by the Recommendations and Conventions of International Organisations of which this country is a member.” (Emphasis added).
80. There has been, therefore, some emphasis on the standards which are laid down by organisations of which this State is a member. In the case of medical treatment without consent, the Act of 2001 provides for both a temporal limitation and a periodic independent medical review in the case of psychosurgery (s. 58); electro-convulsive therapy (s. 59); and administration of medicine (s. 60). These have been cited earlier.
81. The extent and depth of the rights which may be engaged have been identified in the United Nations Convention on the Rights of Persons with Disabilities and in Council of Europe instruments.

82. Article 12 of the above mentioned Convention specifically recognises the right to equal recognition before the law for persons with disabilities. It provides, at sub-article 2:-

“States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”
Thus in that instrument States are enjoined to take appropriate measure to provide to persons with disabilities the support which they may require in exercising their legal capacity; to ensure that all measures relating to the exercise of such capacity provide for appropriate, effective safeguards to prevent abuse; to act so that such safeguards should ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, to ensure the decision-makers are free of conflict of interest and undue influence, the decisions are proportional, tailored to the person’s circumstances; apply for the shortest time possible; and are subject to regular review by a competent independent and impartial authority or judicial body. (See also Recommendation (99)4e on Principles Concerning the Legal Protection of Incapable Adults adopted by the Committee of Ministers on 23rd February, 1999.
83. Counsel for the defendant submits that the Act of 2001 fails adequately to safeguard the defendant’s rights under the Constitution and the Convention because it fails to provide for an independent tribunal to determine whether:-

(a) the patient lacks the capacity to consent to treatment;
(b) whether the treatment being administered, or proposed, is appropriate; and

(c) fails to provide for the designation of an independent person to represent the patient in respect of issues where consent would be required.

However I must point out there has been no challenge to the constitutionality of the Act, nor has a declaration been brought that it is incompatible with the Convention.
84. In the course of arguments and submissions, I have been referred to a number of authorities and commentaries. These include the decision of the ECtHR in Shtukaturov v. Russia, already referred to, and Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, wherein it was pointed out the E.U. is an active participant in the drafting of the Convention; and the Council of Europe Committee of Ministers Recommendation REC (2004) 10 concerning the protection of human rights and dignity of persons with mental disorder. Counsel submits that it must be “convincingly shown” that treatment which is prima facie degrading is a “medical necessity” (Herczegfalfy v. Austria (1992) 15 EHRR 437, para. 82). It is also submitted that in order to provide convincing evidence that the restraint is of medical necessity, state authority must show that all other reasonably available treatments have been tried, but failed. It is suggested that no such evidence has been advanced in the affidavits relied on by the plaintiff here.

85. Despite the finding of lack of capacity by the defendant’s own independent psychiatrist, her solicitor and counsel are instructed that she regards herself as being aware of the treatment and competent to challenge it. It is submitted on behalf of the defendant that the doctors treating the plaintiff should not have been permitted to remove her right to consent to treatment on the basis of a finding of lack of capacity without an independent review as to whether this finding was correct, or without the designation of a person to represent the defendant on the issue of capacity; that no adequate procedural safeguards were deployed to protect the patient’s right to capacity; that Article 6(1) of the Convention is engaged in such determination of these matters and that whether a person has capacity to refuse or consent to medical treatment constitutes determination of a “civil right”. It is contended that these decisions engage Article 6 considerations, and that determinations of capacity involve consideration of Articles 6 and 8 of the Convention. It is contended that the right to choose whether to receive medical treatment is a right that falls within the ambit of “private life” as protected by Article 8 of the Convention, such that it is a right protected by Article 6; and, additionally, one that has protections set out in Article 8(2). Thus, it is contended, an interference with an Article 8 right must, if it is to be lawful, be (i) in accordance with law; (ii) be necessary or proportionate; and (iii) be in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of freedoms of others. The defendant’s case is that in this jurisdiction there is no statutory or other mechanism by which a decision of a consulting psychiatrist that a patient is incapable of consent may be reviewed. The defendants have contested certain aspects of the procedures.

86. I have not been provided with any substantial degree of evidence as to seclusion. It has been stated on affidavit that the defendant must be placed under restraint for the treatment, but no evidence has been adduced either way as to whether other methods were tried. There is a shortage of evidence on this point. With regard to seclusion, it has been stated that the defendant has, on occasion, been placed there, but there is no evidence as to how frequently or under what circumstances.

87. Regardless of any issue of locus standi which may arise, a determination of rights can only take place in concrete evidential circumstances where a court, at whatever level, has the opportunity of hearing the relevant facts. The issue should, be properly and fully pleaded. The issues which are raised here are important. The case is without direct precedent and as such in my view it may be desirable to invite the Attorney General and the Irish Human Rights Commission to consider whether they wish to participate and to be fully placed on notice of the questions which are engaged. But this is for the future. The questions which arise here, the defendants urge, concern whether or not the Act is compatible with the obligations of the State under the Convention provisions. Before a court decides whether to make a declaration of incompatibility the Attorney General and the Human Rights Commission must be given notice of the proceedings in accordance with the rules of the court. The Attorney General shall thereupon be entitled to appear in the proceedings and to become a party thereto as regards the issues of the declaration of incompatibility (s. 6 of the European Convention on Human Rights Act 2003). The matter may then be dealt with by this, or another court if necessary. A court must proceed cautiously when invited to invoke inherent jurisdiction to address a possible are of omission in the law, in circumstances where the rights of other parties, the public interest, the common good and the rights of the State itself may be involved. As a preliminary I will give the parties the opportunity to consider this judgment and to identify precisely the issues the court is to decide. I would also remark that as hereto applied inherent jurisdiction procedure may be expensive and inappropriate to deal with the range of day-to-day matters which necessarily face health professionals daily. For the moment, I also direct that this court will be provided with reports from the psychiatrists involved as to the course of the treatment so far and its outcome. I will hear submissions from parties as to what further procedural steps should now be taken to ensure that the relevant interests are represented and the appropriate issues addressed.

 

JUDGMENT of Mr. Justice of Mr. Justice Birmingham delivered the 3rd day of March, 2011
This is a novel application.

In these proceedings the Health Service Executive (“H.S.E.”) seeks declarations that Mr. J. O’B. is a person who lacks capacity to make decisions in relation to his treatment care and welfare;, that Mr. O’B. is a person in need of an appropriate and continuous regime of clinical, medical and nursing treatment in an environment of therapeutic security, this being in his best welfare and interest;, that the clinical, medical, nursing, therapeutic security, welfare services and treatment at the Central Mental Hospital (C.M.H.), Dundrum, are appropriate to his needs; and for an order directing the H.S.E. to detain Mr. O’B in the C.M.H., as well as seeking various ancillary reliefs.

What makes this application very unusual, if indeed not entirely unique, is that it is agreed on all sides that Mr. O’B. is not suffering from a mental illness or mental disorder as that term is defined in s. 3 of the Mental Health Act 2001, and accordingly it is agreed that the provisions of that Act are of no application.
The factual Factual backgroundBackground
The applicant was born in 1985 in Cork. Early in life he was diagnosed as displaying mild to -moderate learning disabilities associated with very challenging behaviour. So, hHe engaged in extreme violence at pre-school and was excluded from national school when aged four years. Placements in other national schools also failed, as did a placement at a special care primary school for pupils with mild learning disability where he was involved in numerous assaults and was suspended on several different occasions. Aged eight, he was placed in a residential hostel operated by a religious order and over the following years moved through a number of different hostels and institutions, most linked to the religious order. Between 1998 and 2004 he attended a specially dedicated school where very considerabley resources indeed were allocated to meeting his needs. However, in 2000 he set fire to the school as a result of which he was admitted to a psychiatric hospital for a weekend. Further admissions followed.

Throughout this period his behaviour was challenging in the extreme, involving a history of physical aggression towards family members, carers, persons known to him and strangers. He has engaged in serious cruelty towards animals and insects. The Clinical Director of the facility operated by the religious order to which I have referred described Mr. O’B. as showing the features of a “sociopathic personality disorder”.

When he was eighteen years of age that facility concluded that he required a therapeutic environment providing for people with learning disabilities and personality disorders and that no suitable placement existed in Ireland. Contact was made with the Mental Health Services in Britain but unfortunately placements in a number of different units broke down because of the extremely challenging nature of his behaviour. Ultimately he was transferred to the care of an agency known as “Care Principles”, in accordance with the provisions of the Mental Health Act 1983, and since then he has been detained at a number of different facilities operated by them. It may be noted that the legislation in England and Wales contains a broader definition of “mental disorder” then applies in this jurisdiction and this would appear to have permitted the invocation of s. 3 of the English legislation.

The application now before the Court is grounded on an affidavit of Professor Henry Kennedy, Clinical Director of the Central Mental Hospital, who has exhibited a number of detailed reports. Professor Kennedy was also called to give oral evidence during the course of which he elaborated on and clarified certain aspects of his grounding affidavit and reports.

Professor Kennedy’s involvement with Mr. O’B., came about when he was asked to see him by the H.S.E. South. This request was made because the H.S.E. South was anxious to explore whether bringing Mr. O’B. back to Ireland from Britain was feasible and whether it was in his best interest. It should be explained that Mr. O’B. was very anxious to get home to Ireland and that Mr. O’B.’s family members were also very anxious that he should return. Professor Kennedy familiarised himself with the case by reading all available reports, interviewing family members, interviewing his primary carers and travelling to Britain to see Mr. O’B., both in his present location and in the placement where he was previously detained. Then, in January 2009, the Director of Clinical Services with “Care Principles” sought the advice of Professor Kennedy in relation to the management of Mr. O’B. It may be noted that during throughout his placement in Britain that Mr. O’B.’s behaviour has remained very challenging:. So, he has attempted to bite, punch and kick members of staff and other residents and has punched windows and walls. Twenty five incidents of physical aggression involving spitting at staff, biting, punching, head-butting and slapping staff and fellow residents were recorded at his first placement. Also recorded were incidents of sexually inappropriate comments and gestures. This pattern has continued. While the most common type of incident in which Mr. O’B. has been engaged consists of him spitting and kicking doors, there are also recorded instances of him intimidating female staff members and attempting to touch female staff members and touching the groin of a male staff member. Mr. O’B. has informed the staff that he is sexually frustrated. On the basis of what Professor Kennedy has to say, a number of matters emerge very clearly. These include that:-

1. Mr. O’B. has intellectual disability and autism spectrum traits and arrested or incomplete development of mind which includes significant impairment of intelligence and social functions.
2. Because of his arrested or in complete development of mind, Mr. O’B. has significant impairment of social functioning and engages in abnormally and aggressive and seriously irresponsible conduct.

3. Mr. O’B. lacks the mental capacity to manage his financial affairs. In that context it should be noted that Mr. O’B. recently received an award of €50,000 from the Residential Redress Board, and this is an aspect that requires consideration.

4. Mr. O’B. lacks the mental capacity to make decisions about his welfare in his own best interests.

5. Mr. O’B. could not make reasoned decisions regarding his personal care, both medical and psychological.

Professor Kennedy has stated that it is his clinical view that, due to Mr. O’B.’s condition, that he requires care and treatment in conditions of therapeutic security at a medium to high security level. I am entirely satisfied to accept Professor Kennedy’s clinical view as correct and would wish to act upon it. The C.M.H., Dundrum, is the only place in Ireland where such a therapeutic environment as described by Professor Kennedy, can be provided. The members of Mr. O’B.’s family haves been very supportive of his needs and I am also satisfied given their involvement which is a very positive feature of the case, that if he can be cared for in an appropriate setting in Ireland that there are very considerable advantages in having him close to home and family. In that regard, in terms of Mr. O’B.’s needs it is clear he would benefit from family work as an aspect of his care and treatment and this would obviously be facilitated by a return to Ireland. Caring for Mr. O’B. can only safely take place in an in-patient unit. Staff to patient ratios comparable to what are now provided in his current placement in Britain would be required. It is also clear that access to a highly skilled forensic nursing team with training and experience in relation to the prevention and management of violence and aggression would be essential. All these requirements, can, I am assured, be met at the C.M.H.
It has also been established that Mr. O’B. requires a low stimulation environment appropriate for his autistic spectrum traits and intellectual disability. This must, however, be combined with appropriate “slow stream” psychological and rehabilitative programmes designed to optimise the level of recovery that Mr. O’B. is able to achieve. The use of the phrase “slow stream” by Professor Kennedy indicates that there is no realistic expectation of any rapid or dramatic recovery and one must be prepared to contemplate a lengthy period of care and detention. The consultant psychiatrist who has been treating Mr. O’B. has informed Professor Kennedy that consideration is being given to transferring Mr. O’B. from his present location, one that provides medium security and low security facilities for patients to a high secure unit. The consultant also expressed the view that it was likely to be many years before Mr. O’B. could be moved even to a low secure unit.

It seems clear that it is absolutely necessary for Mr. O’B. to remain in care, if he is to receive the necessary treatment and if his unusual needs are to be addressed. It is also clear that it would be in Mr. O’B.’s best interests that he be cared for in Ireland if that can be achieved. If that can be achieved it has the considerable merit that it accords with the wishes of his family, including the wishes of his sister, H. O’B., the member of the family with the most sustained level of involvement with him, who has agreed to act as Guardian ad litem and has been appointed to that role on a interim basis, and indeed it also accords with Mr. O’B.’s own wishes. I am told that great efforts have been made to explain to Mr. O’B. that if he returns to Ireland he would not be going back to his family or going back to take up an independent lifestyle and that he now appreciates that this is so, but that it remains his strong wish to come back to Ireland.

Caring for Mr. O’B. will require the involvement of a multi-disciplinary team, consultant led, and including among its members specialist nurses with training and experience in relation to the care of those with intellectual disabilities and having complex needs including engaging in highly challenging behaviour.

If Mr. O’B. is to be cared for in Ireland it is absolutely clear that the level of care required, including the necessary degree of security, can only be provided in the C.M.H. The H.S.E. explored other possible placements but these efforts proved unsuccessful. Professor Kennedy is firm in his view that the C.M.H. is in fact the only facility in Ireland that can meet the needs of Mr. O’B. It is of course a specialist mental hospital providing treatment for persons with mental disorders in conditions of special therapeutic security.

In all these circumstances I am quite satisfied that it is very much in the best interests of Mr. O’B. that he should be detained and cared for in the C.M.H. in Dundrum which is the only location in Ireland equipped to meet his needs, if that can be achieved. There remains for consideration whether what is desirable and what is in his best interest can be achieved.
The legal Legal basis Basis for the orders Orders soughtSought
Counsel on behalf of the H.S.E., Mr. Felix McEnroy, S.C., contends that the Court can in the exercise of its inherent jurisdiction make the orders sought. He says that if one has regard to the manner in which the Court has exercised a similar jurisdiction in relation to minors over a number of years that by analogy the Court should, where necessary and appropriate, exercise a similar jurisdiction in the case of vulnerable adults.

The origin of the jurisdiction exercised by the courts in relation to minors can be traced to the judgment of the Supreme Court in the case of D.G. v. E.H.B.Eastern Health Board [1997] 3 IR 511, a case which arose from the decision of the High Court to direct the detention in St. Patrick’s Institution of an “at risk” minor. In the Supreme Court it was accepted by counsel that it may be lawful in certain circumstances for a court to order the detention of a child with a view to protecting his or her constitutional rights but disputed that the power extended to detaining a child in a penal institution. The majority of the Supreme Court was of the view that the High Court had indeed jurisdiction to make the order which was the subject of the appeal.

In this case, before one can contemplate making the orders sought, one has to have regard to the provisions of both the Constitution and the European Convention on Human Rights. Article 40.3.1 s.3, subs. 1 of the Constitution states:-

“The State guarantees to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
Article 40., s.3., subs. 2, provides:-
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
Article 40.4.1 provides:-
“No citizen shall be deprived of his personal liberty, save in accordance with law.”
Article 5(1) of the Convention so far as material provides:-
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure described by law;
(e) The lawful detention of persons for the prevention of the spreading of infectious diseases of persons of unsound mind, alcoholics or drug addicts or vagrants.”
The jurisdiction jurisprudence of the European Court of Human Rights establishes that an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum requirements are met: – firstly, the individual must reliably be shown to be of unsound mind;, secondly the mental disorder must be of a kind or degree warranting compulsory confinement; and, thirdly, the validity of continued confinement depends upon the persistence of such a disorder. See Hutchison Reid v. U.K. (Application No. 50272/99(2003) 37 EHRR 9 ) and Winterwerp v. The Netherlands, (24th October, 1979, Application No. 6301/73).
While the issues that arise in the present case do not appear to have been the subject of any direct authority in this jurisdiction, similar issues have arisen for consideration in England and Wales, and in particular were the subject of consideration by the Court of Appeal in “In Re F (Adult: Court’s Jurisdiction) [2000] 2 F.L.R. 512. In that case the adult at the centre of the proceedings was mentally handicapped and had been voluntarily accommodated in a children’s home since shortly before her 17th birthday but parental consent to that arrangement was withdrawn because the parents of the now adult wished her to return to the family. In earlier proceedings it had been established that the adult did not come within the terms of the Mental Health Acts and that she was not susceptible to the Court’s Wardship jurisdiction. In these circumstances the local authority sought to invoke the Court’s inherent jurisdiction quoting the doctrine of necessity, a doctrine that can be traced back to a number of court decisions in the 18th and 19th Centuries, in order to claim a declaration enabling the local authority to direct where the adult should live and to restrict and place under supervision the adult’s contact with her natural family. The Court held, in affirming the decision of the High Court, that where there was a risk of possible harm in respect of an adult who lacked the capacity to make decisions as to his or her own future, that the Court had power, under its the inherent jurisdiction, and in the best interests of that person, to hear the issues involved and to grant the necessary declarations. Dame Butler- Sloss, President of the Family Division was of the view that the English Mental Health Legislation did not cover the day- to- day affairs of mentally incapable adults and that accordingly the doctrine of necessity may properly be invoked side by side with the statutory regime.

There are a number of similarities between the F. case and the present case but also a number of very significant differences. In both cases, the adult lacks the capacity to make a decision as to his or her future. However, while in F. there was disagreement between the parents and the Local Authority, the Local Authority felt that the mother in that case had failed to take proper care for her daughter, in the present case the family members of the incapable adult, and the H.S.E. are in agreement as to what is in the best interests of Mr. O’B. It is also the case that what is proposed accords with the wishes of Mr. O’B. There is also the fundamental difference that in F., the choice was whether the adult reside in the place specified by the Local Authority or whether she would reside with her parents. Here the question is whether this young Irish adult is to be detained at the Central Mental Hospital in his own country, or whether he is to be detained in an institution in Britain. In a situation, where the H.S.E., the family of the adult and indeed Mr. O’B. the adult himself are all of the same mind, the Court’s task is a less daunting one.

The issues that arise were discussed in the quite different context of arranged marriages in the case of Re S.A. (Vulnerable Adult with Capacity Marriage) [2006] F.L.R. 867. Discussing the powers of the court, Munby J. commented as follows at para. 84:-

“As I have said, the Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. The main difference is that the Court cannot make an adult a Ward of Court… But this apart, the Court’s powers to make orders under the inherent jurisdiction in relation to adults would seem to be as wide as its powers when exercising it inherent parens patriae jurisdiction in relation to children. Just as there are, are in theory no limits to the Court’s powers when exercising the Wardship jurisdiction, I suspect that there are, in theory, few if any limits to the Court’s powers when exercising the inherent jurisdiction in relation to adults.”
He then went on to refer to his own comments in Re S. (Adult Patient) (Inherent Jurisdiction:; family Family life) [2002] EWHC 2278 (FAM) [2003] 1 FLR 292, where he had commented, at para. 50:-
“The Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the incapable adult’s welfare and interests.”
The observations of Munby J. are couched in broad terms, and in the absence of full debate, and unless and until the issues arise, I am not to be taken as necessarily being in full agreement. However, in more limited cases, where an adult lacks capacity and where there is a legislative lacuna so that the adult’s best interests cannot be served without intervention by the Court, I am satisfied that the Court has jurisdiction, by analogy with cases like D.G. and the several High Court decisions from different judges of the High Court there referred to, to intervene.
There remains for consideration the question of what structures are necessary by way of safeguard. In the analogous case of children detained by order of the High Court, all such situations are the subject of regular, usually monthly reviews. There is the difference that in the childrens’ cases, the hope and expectation is that the detention will be a short one and that after a relatively brief period in secure care that the children will be able to move on, whether that be back to their families, to a step-down residential facility or to a foster placement. Here, the expectation is that the requirement for care while detained will be a lengthy one.

The orders proposed involve a serious interference with the right to liberty and that interference, if it is to be contemplated at all, must be reviewed on a regular basis and if it is to be continued will have to be justified on a regular basis. Accordingly, I intend to review the case at an early stage once Mr. O’B. has taken up residence in Dundrum the C.M.H., and thereafter to review the case regularly. Initially, at least, reviews will take place every two months but I will consider re-addressing that time table once a routine is established – given that autistic traits are a feature of the case, the establishment and maintenance of a routine is vital.

Mr. Timothy O’Leary S.C., counsel on behalf of the Guardian ad litem, Ms. H O’B., has indicated that he will be seeking an opportunity to obtain an independent professional report on the suitability of the C.M.H. and the progress being made there in due course. In signalling that desire, he stresses that Ms. O’B. is firm in her view that it is very much in her brother’s interests that he be transferred to the C.M.H.Dundrum and that he be cared for there, as indeed it is the view of her parents. While not for a moment suggesting that either Professor Kennedy or the medical and nursing team in the C.M.H. Dundrum would ever for a moment contemplate acting in a way that was other than in what they perceived to be Mr. O’B.’s best interests, the suggestion is nonetheless a worthwhile one and I will require the H.S.E. to facilitate this. That all involved with Mr. O’B. have a common view on what is best for him offers considerable reassurance and comfort to the Court. However, on the other hand, it does mean that the Court is without the assistance that is offered by the intervention of a legitimus contradictor. Counsel who have appeared have been very conscious of that and I am very grateful to them for the level of assistance that they have provided. However, in a situation where all parties participating in the proceedings are in agreement, I think it would be of assistance if the Court had the benefit of an expert professional report from someone independent of all parties and I will require the H.S.E. to facilitate the making of the necessary arrangements. Subject to the putting in place of the necessary safeguards and supports as described, I am prepared to make the orders sought and I will discuss with counsel exactly what form those orders should take.

 

The State (H.) v. Daly

 

[1977] IR 90
Finlay P. 92
This is an application for an order of habeas corpus pursuant to an enquiry under Article 40 of the Constitution. The prosecutor was the defendant in certain proceedings instituted against him in the Circuit Court in Galway in respect of the ownership of lands. On the 28th June, 1973, an order was made in those proceedings restraining the prosecutor from entering on the lands and, upon appeal, that order was confirmed on the 5th October, 1973, with a stay of one month before it should become effective. Apparently the order was served on the prosecutor. After the order became operative the prosecutor disobeyed it, and a motion for his attachment and committal was issued and came on for hearing on the 25th October, 1974. On the 30th October, 1974, an order was made by Mr. Justice Durcan (who was then the Circuit Court judge for the county of Galway) committing the prosecutor to prison. In pursuance of that order and warrant he was committed to prison on the 12th December, 1974, until he should purge his contempt. On the 24th December, 1974, the Minister for Justice made an order transferring the prosecutor from prison to the Central Mental Hospital; this order was made under the Central Criminal Lunatic Asylum (Ireland) Act, 1845, as adapted, amended and extended.
The prosecutor obtained from me a conditional order pursuant to Article 40 of the Constitution and cause was shown; he was produced in Court by the respondent in pursuance of that order. The matter was then fully argued before me.
The first point taken on behalf of the prosecutor was a submission that he was entitled to trial by a jury on the question as to whether he had been guilty of contempt of the Circuit Court by disobeying its order and that, therefore, the original order of the learned Circuit Court judge committing the prosecutor to prison was invalid and that, consequently, the order transferring him from prison to the Central Mental Hospital was also invalid. I have just delivered a judgment in The State (Commins) v.McRann 1 dealing with this point, and so it is unnecessary for me to repeat the reasons why I reject this submission.
However, two further points were taken. It was alleged on behalf of the prosecutor that, at the time when he committed the acts of disobedience and at the time when the proceedings against him for committal were brought at which he defended himself and refused to be represented by solicitor or counsel, he was suffering from a mental disease which prevented him from forming the necessary intent or mens rea which was a constituent of the act of disobedience or act of contempt. Further, it was submitted that he still suffers from the same mental disease which now prevents him from purging his contempt and that, accordingly, his detention pursuant to the order of the Circuit Court and the order of transfer by the Minister was no longer lawful.
In regard to these two points, which were ably and forcefully argued on behalf of the prosecutor by Mr. MacEntee, I have come to the following conclusions. I am satisfied that it is not within the jurisdiction of this Court on an application for habeas corpus to consider the merits of the issue tried by the Circuit Court judge at the time when he made the order for committal, nor to consider in any way the weight of that evidence.
In pursuance of the submissions made by Mr. MacEntee, I admitted the oral evidence of Dr. Brian McCaffrey (a psychiatrist attached to the Eastern Health Board) who has had a series of examinations of and interviews with the prosecutor recently. I expressly admitted that evidencede bene esse and without ruling as to whether it was relevant or acceptable in these proceedings. A short summary of the evidence given by Dr. McCaffrey can be said to be that the prosecutor is now suffering and, for very many years prior to the proceedings in the Circuit Court, has suffered from a deep-seated condition of paranoia which makes it impossible for him, the result of a mental disease, to accept the correctness or validity of any decision of the Circuit Courtparticularly with regard to this dispute between himself and his brother concerning the landand which, therefore, prevents him from acting properly and continues to prevent him from acting properly and renders him, in the opinion of Dr. McCaffrey, not a free agent because he is acting under very strong delusions. In the opinion of the witness these delusions of the prosecutor and his mental condition do not prevent him from understanding the consequences of what he is doing, nor the consequences of refusing to purge his contempt. It is also the opinion of Dr. McCaffrey that the prosecutor requires, in his own interest, continued institutional medical treatment for his mental condition.
It is clear that the provisions of the Criminal Lunatics (Ir.) Act, 1838, and the Central Criminal Lunatic Asylum (Ir.) Act, 1845, as amended and as applied by s. 8 of the Criminal Justice Act, 1960, extend the effect of an order of transfer (such as was made in this case by the Minister for Justice) beyond the expiry of any sentence of imprisonment which originally brought the person concerned into the custody of a prison governor. It is also clear that it is not the intention of this legislation that a sentence of imprisonment by way of penalty should be continued indefinitely or beyond any specific period which may have been imposed by a court, but that the person suffering from mental disease and requiring involuntary detention in an appropriate mental institution should be held there until he has recovered (even though he originally came from the custody of a prison governor) in just the same way as a person not in any way involved in the commission of any offence, or involved in undergoing any sentence of imprisonment, may be similarly detained against his will under the provisions of the Mental Treatment Act, 1945.
In my opinion, it is clear on the provisions of these Acts that, even if the prosecutor now purged his contempt (if he were capable of so doing) or even if the plaintiff now waived further compliance by the prosecutor with the order of the Circuit Court, the prosecutor could not be released from his present detention in the Central Mental Hospital unless and until the Minister, in accordance with the Acts, is satisfied upon appropriate medical evidence that the prosecutor has recovered his sanity. Therefore, if the prosecutor is to impugn the validity of his present detention and, in particular, the validity of the order of transfer from prison to the Central Mental Hospital, he must do so upon the grounds that these provisions infringe his Constitutional rights. It was first suggested by Mr. MacEntee that they did so largely on the basis that the prosecutor was now suffering a period of imprisonment removed from the supervision of the Court. Secondly, it was suggested that there is a discrimination against the prosecutor which is unconstitutional by reason of the provisions of the Act of 1945 which entitle the Minister for Health to send an inspector of mental hospitals to examine any person in any mental institution and which differentiate between the necessary matters upon which he should report in the case of a person in an ordinary district mental hospital and those on which he should report in the case of a person in the Central Mental Hospital; in the former instance it is obligatory for the inspector to report on the legality of the detention whereas in the latter it is not.

With regard to the first of these submissions, a consideration of the Acts makes it quite clear that the prosecutor is not now in fact serving a prison sentence and that his detention in the Central Mental Hospital is not dependent on any court order, nor is there any necessity for the Court to supervise his detention in that hospital otherwise than by the enquiry which I am now conducting under Article 40 of the Constitution.
With regard to the second submission, I draw attention first to the right of the prosecutor to seek an enquiry from the High Court as to the legality of his detention and, secondly, to the power of the President of the High Court under s. 241 of the Act of 1945 (which is applicable to the Central Mental Hospital as to every other mental institution) to send an inspector and require a report on any matter (as I read the section) upon which the President seeks a report concerning a person detained in such hospital. In these circumstances I am satisfied that the distinction in detail between the obligatory matters upon which an inspector sent by the Minister under the Act of 1945 to the Central Mental Hospital should report and those on which the inspector should report after a visit to a district mental hospital do not discriminate in any way against the prosecutor; nor do they affect his Constitutional rights in any way, nor are they a failure to protect and secure to him his personal freedom. For these reasons I am satisfied that the cause shown by the respondent against the conditional order is good and that the application must be dismissed.

The prosecutor appealed to the Supreme Court from the order and judgment of the High Court. The appeal was heard on the 4th and 5th October, 1976.
The prosecutor conducted his appeal in person.-

S.C.

O’Higgins C.J.
14th October, 1976

On the 2nd December, 1974, the prosecutor was committed to Limerick Prison because of his failure to obey an order of the Circuit Court (confirmed on appeal) restraining him from entering upon certain lands. The authority for arrest and detention in that prison was a warrant of committal signed by the county registrar for the county of Galway and issued at the direction of the Circuit Court judge (now Mr. Justice Durcan). On the 24th December, 1974, the Minister for Justice made an order transferring the prosecutor from Limerick Prison to the Central Mental Hospital. This order purports to have been made under the provisions of the Central Criminal Lunatic Asylum (Ireland) Act, 1845. The prosecutor is still detained in the Central Mental Hospital pursuant to this order. He has sought relief by habeas corpus proceedings and, having been refused an order in the High Court, has appealed to this Court.
The prosecutor’s committal was for contempt of court because he refused to obey an order of the Circuit Court. This is a form of contempt termed “civil.” The committal order, because of such contempt, has as its object the enforcement of obedience to the order of the court by use of the sanction of continued imprisonment. While such was the reason for the prosecutor’s imprisonment in the first instance, his present confinement is pursuant to the order or direction given by the Minister for Justice under the provisions of the Act of 1845 and, accordingly, the first question to be considered in relation to the prosecutor’s claim for habeas corpus is whether this order or direction was valid. The relevant section of the Act of 1845 is s. 12 which reads as follows:
“Whenever and as soon as the said central asylum shall be erected and fit for the reception of lunatics, it shall be lawful for the said lord lieutenant, if he shall so think fit, to direct, by warrant under his hand, that any person who may be under any sentence of imprisonment or transportation in any gaol or place of confinement, or in any district asylum, and in respect of whom it shall be certified by two physicians or surgeons, or a surgeon and physician, that such person is or has become insane, shall be removed to the said central asylum; and every such person so removed shall remain under confinement in said asylum so long as such person shall remain subject to be continued in custody, or until it shall be duly certified to the said lord lieutenant by two physicians or surgeons, or a surgeon and physician, that such person has become of sound mind, whereupon the said lord lieutenant is hereby authorized, if such person shall remain subject to be continued in custody, to issue his warrant to the keeper or other person having the care of any such asylum, directing that such person shall be remitted to the prison or other place of confinement from which he or she shall have been taken, or, if such person shall be entitled to his or her discharge, to direct the discharge accordingly.”
When the order was made by the Minister, the prosecutor was in Limerick Prison pursuant to a warrant for committal. He was accordingly in “gaol” but was he there under a sentence of imprisonment? This question can be put another way by asking whether the power to transfer given by the section applies only to those who have committed criminal offences and are, on that account, serving sentences of imprisonmentleaving aside, of course, the question of those already in a district asylum. The marginal note to s. 12 of the Act of 1845 would suggest that this was so. This marginal note reads as follows:”Convicts who become insane, may be removed to central asylum.” However, this marginal note is no part of s. 12 and the meaning and effect of the section must be found in the words used. I note the use of the words “any gaol or place of confinement” and, at the end of the section, if the person has recovered but is still subject to the original order, that he be remitted to “the prison or other place of confinement” from which he had been taken. I note also that the section speaks of the person remaining under confinement in the said asylum so long as he shall remain “subject to be continued in custody.” The use of these words and phrases in the section indicate to me that the section was intended to operate when any person is confined under a court order for any reasonagain leaving aside those confined in district asylums. The section would cover attachment for debt as well as imprisonment pursuant to a prison sentence. To construe the section otherwise would be to ignore the words actually used and, incidentally, to lead to a result that could not have been intended. I must conclude, therefore, that the order made pursuant to s. 12 of the Act of 1845 was validly made.
No question arose with regard to the transfer to the Minister for Justice of the powers originally exercisable by the lord lieutenant.3
Since the basis for the prosecutor’s transfer to the Central Mental Hospital was a certificate to the effect that he had become insane, the question also arose as to whether such insanity could have excused the civil contempt and avoided the original order of committal. I have considered very fully the evidence adduced in relation to this and I am satisfied that whatever degree of mental illness the prosecutor suffered it was not such as rendered him incapable of knowing fully what he was doing. Therefore, without considering further whether in such circumstances mental illness may be a bar to an order for committal, I am satisfied that the degree and nature of such illness in this case could not be considered a reason why an order for committal should not have been made.
In the High Court, the applicant’s application for an order of habeas corpus was put on two main grounds. First, it was argued that the finding of contempt required a trial by jury. Mr. Justice Finlay held that the disobedience of the prosecutor to the injunction granted by the Circuit Court was a civil contempt which did not require to be found by a trial by jury. I agree with that conclusion and with the reasons for it which are set out in the decision of Mr. Justice Finlay in The State (Commins) v. McRann. 4Secondly, it was submitted that even if the prosecutor had been validly sent to prison for contempt of court, his transfer from prison to his present detention in the Central Mental Hospital was not permitted by the statutory provisions relied on. For the reasons given earlier in this judgment, I agree with the President of the High Court in his rejection of that submission.
While the prosecutor ranged outside these two grounds in his argument in this Court, these matters and the additional question of excusability on the ground of insanity seem to me to be the only matters properly arguable in this appeal. Since these three grounds must, in my opinion, be decided against the prosecutor, I would dismiss the appeal.

Henchy J.
I agree.

Parke J.
I also agree.

The People v Quilligan and O’Reilly (No. 3)

[1993] 2 IR 305
Finlay C.J.

These two appeals were brought by the two accused against convictions entered against them by the Central Criminal Court on two charges of burglary.
The offences out of which the charges arose were alleged to have been committed by the two accused jointly; the trials were had jointly and the appeals have been heard together.
During the course of the appeals a submission was made on behalf of each of the appellants that s. 30 of the Offences Against the State Act, 1939, was invalid having regard to the provisions of the Constitution of Ireland, 1937.
The relevance of that issue was that the evidence established that each of the appellants had been arrested pursuant to the powers vested in the Garda Siochana by s. 30 of the Act of 1939 and had subsequently been detained for twenty-four and, eventually, for forty-eight hours pursuant to the provisions of that section.
This judgment deals only with the question as to whether s. 30 of the Act of 1939 has been established to the satisfaction of the Court to be invalid having regard to the provisions of the Constitution.
The impugned section
“30 (1) A member of the Garda Siochana (if he is not in uniform, on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid.
(2) Any member of the Garda Siochana (if he is not in uniform on production of his identification card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.
(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Garda Siochana station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Garda Siochana not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours.
(4) A person detained under the next preceding sub-section of this section may at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Garda Siochana, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section.

(5) A member of the Garda Siochana may do all or any of the following things in respect of a person detained under this section, that is to say:
(a) demand of such person his name and address;
(b) search such person or cause him to be searched;
(c) photograph such person or cause him to be photographed;
(d) take, or cause to be taken, the fingerprints of such person.
(6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Garda Siochana of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.”
The appellants’ challenge
The constitutional validity of the section was challenged on three separate grounds, and they are:
(a) That it was in breach of Article 40, s. 1 of the Constitution which provides that all citizens shall as human persons be held equal before the law. The submission under this heading was to the effect that the right of a person arrested on suspicion of having committed an offence which was not an offence under the Act of 1939 or for the time being a scheduled offence for the purposes of Part V of that Act, had as his right to be brought before a court and charged with such offence as soon as practicable, or to be released. On the other hand, it was submitted, a person who was suspected of having committed an offence under the Act of 1939 or scheduled for the purposes of that Act, could on arrest be detained in custody for twenty-four hours and, upon certification by a Chief Superintendent, for a further twenty-four hours. Such disparity, it was submitted, was an invidious discrimination in breach of Article 40, section 1 of the Constitution.
(b) It was submitted that the personal right of liberty guaranteed by the Constitution was insufficiently respected and defended by a law which permitted a person suspected of having committed an offence under the Act of 1939, or a scheduled offence, to be detained for twenty-four or forty-eight hours and that this rendered the section invalid having regard to the provisions of Article 40, ss. 3 and 4 of the Constitution.
(c) It was submitted that the right to silence or the right of protection against self-incrimination was an unenumerated personal right attracting the protection of Article 40 of the Constitution, and that the possibility, pursuant to s. 30 of the Act of 1939, for a person arrested on suspicion of the commission of an offence under the Act or scheduled within it being subjected over a period of twenty-four or forty-eight hours to interrogation by members of the Garda Siochana was an invasion of such unenumerated right, rendering the section inconsistent, for that reason, with Article 40 of the Constitution.
With regard to the submission set out at (b) above, reliance was placed on the fact that upon the hearing of the reference of the Emergency Powers Bill, 1976, to this Court pursuant to Article 26 of the Constitution, the Attorney General in supporting the constitutional validity of the Bill placed reliance on the resolution adopted by each House of the Oireachtas on the 1st September, 1976, pursuant to Article 28, s. 3, sub-s. 3 of the Constitution, and to the provisions of that sub-section which then became applicable to the Bill.
The decision
On an appeal brought before this Court by the Director of Public Prosecutions against the acquittal of the two appellants in this appeal in a former trial in the Central Criminal Court on a charge of murder arising out of the events which form the subject matter of the charges of burglary with which this instant appeal is concerned, this Court dealt with a ruling which had been made by the learned trial judge in that case to the effect that Part V of the Act of 1939 was intended to deal only with crimes of a subversive nature, and that as no subversive element had been shown to exist in the crime imputed to the accused, their arrest and detention under s. 30 of the Act of 1939 had been illegal. That ruling on the hearing of that charge resulted in an acquittal of the present appellants by direction of the trial judge. The Supreme Court in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495 held that, where an offence is declared by order under the Act of 1939 to be a scheduled offence for the purposes of that Act, the provisions of s. 30 of the Act become applicable in relation to such offence and the police powers conferred by that section become exercisable against any personbona fide suspected of being involved in the commission of such offence, whether such suspected offence is or is not believed to have been political or subversive in its motive. In the course of his judgment, with which Hederman and McCarthy JJ. agreed, Walsh J. dealt extensively with the powers conferred by s. 30 and with the restrictions which were applicable to the exercise of those powers.
The Court is satisfied that this examination of the characteristics and powers contained in s. 30 is correct and is clearly material to the issues raised in this appeal.
Having dealt with the various powers contained in the six sub-sections of s. 30, Walsh J., at p. 507, stated as follows:
“It is to be noted that before exercising any of the powers conferred in s. 30, the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not, then the action taken by virtue of s. 30 and purported pursuant to s. 30 would be illegal . . .
No exercise of the powers conferred by s. 30 in relation to any person can be justified solely by the desire to interrogate that person. Sub-section 5 of s. 30 makes specific provision for interrogating persons detained under s. 30 and it is the only provision of the Offences Against the State Act, 1939, giving the right to ask particular questions conferred on members of the Garda Siochana when Part V is not in force.”
The learned judge then continued to deal with the provisions of s. 52 and the situation which arose when Part V of the Act of 1939 was in force.
The powers contained in s. 52 were not invoked at any stage in the instant case before this Court and no challenge or query to the constitutional validity of that section has been made.
Walsh J. then continued as follows at page 508:
“Apart from those particular provisions in ss. 30 and 52, the Act of 1939 does not place any obligation on any person to answer any question, and any person detained or arrested by virtue of those sections would not, subject to the possibility of committing the offence of creating a public nuisance, or of misprision, be committing any criminal offence if the account he gives of his movements or the information he gave in regard to the commission or intended commission of the criminal offence were false or misleading. (See The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336, at p. 356 of the report, a decision approved by this Court in The People (Director of Public Prosecutions) v. Kelly (No. 2) [1983] I.R. 1 at p. 23 of the report). But as the latter case pointed out, whilst ss. 30 and 52 respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in the cases of arrest for ‘ordinary’ offences, may be asked any other question by members of the Garda Siochana present, but he is under no obligation to answer any of them, and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all persons detained under s. 30 and, as described by this Court in its judgment in In re The Emergency Powers Bill, 1976 [1977] I.R. 159, at p. 173 of the report, such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts. These specified rights were not intended by the Court nor expressed to be an exhaustive list but if s. 30 were used in breach of such rights, the High Court might grant an order for release under the provisions of Article 40 of the Constitution . . .
When a person is arrested under s. 30 as in any other arrest he must be informed of which of the many possible offences he is suspected unless he already has that information. (See The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294) . . .
During his detention, in addition to the rights already set out, he must not be subject to any form of questioning which the courts would regard as unfair or oppressive either by reason of its nature, the manner in which it is conducted, its duration or the time of day, or of its persistence into the point of harassment where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned. A fortiori this applies to cases where the initial detention period of twenty-four hours is extended to forty-eight hours by virtue of the provisions of s. 30, sub-s. 3 of the Act of 1939, bearing in mind that the officer, not below the ran of Chief Superintendent, who may authorise the extension of the detention must also entertain the necessary suspicions . . .
I have dealt in some detail with the powers given by ss. 30 and 52, because it appears from the learned trial judge’s reference to s. 30 as providing the Garda Siochana with ‘patently draconian powers’ and giving them the right to ‘compulsorily interrogate a person suspected of crime’ that he felt that ss. 30 and 52 gave to members of the Garda Siochana carte-blanche both as to the manner, nature and duration of the interrogation of persons so arrested. I hope I have succeeded in showing that such is not the case, and that any mistaken beliefs to the contrary, wherever they reside, will be dissipated. The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. Section 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.”
Accepting as it does the validity of these statements concerning the powers conferred by s. 30 and the rights and protections of a person detained pursuant to arrest under that section, the Court has come to the following conclusions with regard to the submissions challenging the constitutional validity of the section which have been made in this case.
The Court is not satisfied that the provisions of this section are any breach of the obligation that all citizens should be held equal before the law, or that they could possibly come within the category of invidious discrimination which would make them constitutionally flawed. Every person who is suspected of the commission of an offence under the Act of 1939 or an offence scheduled for the purposes of that Act is subject in law to the same rights and obligations and to the possibility of detention for the same period or periods. Similarly, every person arrested on suspicion of the commission of a criminal offence which is not an offence against the Act of 1939 and is not scheduled for the purposes of that Act, is subject to the same powers of detention on the part of the Garda Siochana and to the same rights, though such powers of detention and rights are different from those applicable to persons arrested under section 30.
The mere fact that a law discriminates as between one group or category of persons and another does not, or itself, render it constitutionally invalid. What is necessary to establish such invalidity is the existence of invidious discrimination, and the court is satisfied that that has not been established with regard to s. 30 of the Act of 1939 in this case. This ground of challenge must, therefore, fail.
The mere fact that the provisions of the Emergency Powers Bill, 1976, on the reference of it to this Court, were defended on the basis of the provisions of Article 28 of the Constitution, does not appear to this Court to lead to any particular conclusion of a comparison between the provisions of that Bill and s. 30 of the Offences Against the State Act, 1939. The Bill of 1976 specifically referred in its title to the resolution adopted by each House of the Oireachtas on the 1st September, 1976, pursuant to Article 28, s. 3, sub-s. 3 of the Constitution. As such, it necessarily fell to be considered by this Court on such reference, having regard to the provisions of that Article of the Constitution. From that fact, the Court is not satisfied that any inference can be drawn as to the constitutional validity of a section empowering detention on suspicion of the commission of an offence for a lesser period than the seven days, namely, for twenty-four, extendable to forty-eight, hours.
Where a person has been arrested pursuant to s. 30 of the Act of 1939 he has got, in the view of this Court, the following protections.
1. If the arresting garda does not have a bona fide suspicion based on reason of one or other of the matters provided for in the section the arrest is unlawful and he may be released by an order pursuant to Article 40 of the Constitution – The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550.
2. At the time of the arrest the suspect must be informed, if he does not already know, of the offence pursuant to the Act of 1939 or scheduled for its purposes, of which he is suspected, otherwise his arrest will be unlawful – The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294.
3. The person detained has, during his detention, a right to legal assistance, and the refusal to grant it to him when reasonably requested can make his detention unlawful – In re The Emergency Powers Bill, 1976 [1977] I.R. 159, and Director of Public Prosecutions v. Healy [1990] I.L.R.M. 313.

4. The right to medical assistance – In re The Emergency Powers Bill, 1976 [1977] I.R. 159.
5. The right to access to the courts – In re The Emergency Powers Bill, 1976 [1977] I.R. 159.
6. The right to remain silent and the associated right to be told of that right – The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495.
7. The Judges’ Rules with their provisions in regard to the giving of cautions and the abstention from cross-examination of a prisoner apply to a person in detention under s. 30 – The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495.
8. A person detained under s. 30 must not, in the words of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495, “be subject to any form of questioning which the courts would regard as unfair or oppressive, either by reason of its nature, the manner in which it is conducted, its duration or the time of day or of its persistence into the point of harassment, where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned”.
9. If the detention of a person arrested under s. 30 is extended by a Chief Superintendent for a further period after the first period of twenty-four hours, he must entertain also the necessarybona fide suspicion of the suspect that justified his original arrest and must be satisfied that his further detention is necessary for the purposes provided for in the section – The People (Director of Public Prosecutions) v. Eccles , McPhillips and McShane (1986) 3 Frewen 36.
The Court having considered all these protections, any of which can be made effective either by, where appropriate, the release of the person detained from his detention, pursuant to an order made under Article 40 of the Constitution or can be given effect to by the exclusion of evidence obtained in violation of any of these rules applicable to detention under s. 30, is satisfied that having regard to the purposes of the section as outlined in the judgment of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495, to which reference has already been made, that s. 30 has not been established as constituting a failure by the State as far as practicable by its laws to defend and vindicate the personal right of immediate liberty of the citizen.

With regard to the third submission no detailed submission of any description was put before the Court as to the reasons why the Court should conclude that a right of silence or a right to be protected against self-incrimination was an unenumerated personal right deriving protection from Article 40 of the Constitution. No decision of the High Court or of this Court was referred to by counsel on behalf of the appellants indicating the existence of such a right as a constitutional right, unenumerated or not specified.
The Court is not satisfied, having regard, in particular, to the various protections of the right of silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s. 30, sub-s. 5 available to a member of the Garda Siochana in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise; constitutes an invasion of or failure to protect the right of silence of a citizen. On that basis the Court is satisfied that the challenge under this heading must fail. The Court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution.
The Court is therefore not satisfied that for any of the reasons put forward on behalf of the appellants in this case, s. 30 of the Offences Against the State Act, 1939, is invalid having regard to the Constitution.
The following judgments were delivered in relation to the non constitutional grounds of appeal.

Finlay C.J.
In this appeal from the conviction of each of the appellants on a charge of burglary in the Central Criminal Court, on the 17th November, 1989, each of the appellants raised a challenge to the constitutional validity of s. 30 of the Offences Against the State Act, 1939, pursuant to which they were each arrested in respect of a suspicion of having committed the crime of malicious damage and were subsequently charged with the offences of murder and burglary. The decision of the Court on that challenge has just been pronounced, pursuant to Article 34 of the Constitution. It is necessary, however, for the members of the Court to determine the other issues raised in the notices of appeal filed on behalf of the appellants.
Appeal of Patrick O’Reilly
The appeal on behalf of Patrick O’Reilly was first submitted to this Court prior to the submission of the appeal on behalf of Christopher Quilligan, and I will accordingly deal with Mr. O’Reilly’s appeal first.
Ground 1
“That the learned trial judge erred in law in holding that the prosecution of the charge on the indictment was not unfair, having regard to the effluxion of time or to the changed circumstances of the appellant”.
The facts relevant to this submission are as follows. The two accused were originally put forward for trial in the Central Criminal Court on an indictment containing two counts against each of them, arising out the same set of circumstances. One was a count of murder and the other was a count of burglary, the murder being alleged to have occurred in the course of the burglary. On a trial in that court in December, 1985, the Director of Public Prosecutions without any opposition from either of the accused sought a separation of the two counts on the indictment, and put forward the accused on the charge of murder only, obtaining an adjournment of the charge of burglary. That case was determined by Barr J. in the Central Criminal Court in December, 1985, and, having ruled as a matter of law that the arrest of the accused pursuant to s. 30 of the Offences Against the State Act, 1939, was unlawful because the offence of which they were suspected, namely, an offence of malicious damage, was not a terrorist type offence, and there being no evidence against the accused sufficient to warrant a conviction other than the statements made by them while under such arrest, he directed the jury to find each of the accused not guilty of the charge of murder. Against that decision the Director of Public Prosecutions appealed to the Supreme Court, and on the 25th July, 1986, this Court decided that the learned trial judge’s ruling had been in error, and set aside the decision of the Central Criminal Court acquitting each of the accused on the charge of murder. The Court did not on that occasion make any decision or order in relation to a re-trial.
The Director of Public Prosecutions subsequently issued a motion to the Supreme Court seeking an order directing the re-trial of each of the accused on the charge of murder in the Central Criminal Court. That motion was brought in December, 1986, and was eventually disposed of by the Supreme Court by judgment delivered on the 29th July, 1988, in which the Court declined to make any order directing a re-trial of the accused on the charge of murder.
The two accused were then put forward for trial in the Central Criminal Court on the charge of burglary only and an adjournment of that trial was applied for early in the spring of 1989 and was granted, and eventually the trial came on in October, 1989, before the Central Criminal Court (Costello J. and a jury).
The only grounds on which this appellant submitted that it was unfair to reject an application made on his behalf prior to the commencement of that trial that the efflux of time made a trial unfair was that he had altered circumstances in the sense that, since the original trial in 1985, the consequent acquittal and the reversal of that by the Supreme Court he had been on bail and had got married and had a child.
He did not suggest that his capacity to defend the case was in any way prejudiced, other than the mere assertion that time made it more difficult to remember the sequence of events.
I am quite satisfied that an alteration in the circumstances of the accused and the responsibilities which he had taken on, whilst it might be quite relevant as a factor in the assessment of an appropriate sentence, could not possibly be a ground for not prosecuting him and trying him on as serious a charge as this burglary was, even after the efflux of the amount of time involved. There can be no real suggestion, nor was one made, that the Director of Public Prosecutions was at fault, causing the delay which had occurred. I would, therefore, reject this ground of appeal.
Ground 2
“That the learned trial judge erred in law in holding that the separation of the two counts of the indictment by the respondent in December, 1985, was not unfair and no bar to the respondent to proceed with the trial of the remaining count on the indictment.”
No opposition to this separation of the two counts on the indictment was made on behalf of this appellant in December, 1985. There are strong grounds of policy to be found in a number of decisions in favour of not trying with a charge of murder a count of other crimes arising out of the same transaction, even though that is not an inflexible or mandatory prohibition. No grounds have been advanced which in my view would suggest that the decision to separate the counts on that occasion was in any way unfair to the appellant. I would reject this ground of appeal.
Ground 3
“That the learned trial judge erred in law in holding that the Central Criminal Court had jurisdiction to hear and determine the remaining charge on the indictment.”
This submission was not advanced, and it was accepted on behalf of the appellant that having regard to the decisions applicable there was jurisdiction to proceed.
Ground 4
“That the learned trial judge erred in law in holding that the appellant was not entitled to plead in bar autrefois acquit.”
This ground was submitted upon the basis that even though it had subsequently been set aside and discharged by the Supreme Court order of the 25th July, 1986, the verdict of the jury in December, 1985, was a previous acquittal.
I am satisfied that there are no grounds for this submission in law. It is fundamental to the concept of a plea in bar of autrefois acquit orautrefois convict that there is a subsisting valid acquittal or conviction of the precise charge available. This appellant was never tried on the charge of burglary before the trial which was had in October, 1989, in the Central Criminal Court, and furthermore, at the time he was put forward for trial on that charge at that time, even if it had been the same offence as was tried in December, 1985, the purported acquittal which had been reached in error by the court in December, 1985, in the view of the Supreme Court, had been set aside and discharged. This ground must also fail.

Ground 5
“That the learned trial judge erred in law and in fact in holding that the alleged admissions by the appellant were admissible in evidence.”
Ground 8
“That the learned trial judge’s determination of the trial within the trial on the issue as to the admissibility of the alleged admissions was against the evidence and the weight of the evidence.”
Ground 9
“That the learned trial judge erred in law and in fact in holding that the circumstances of the interrogation given by witnesses for the respondent did not have the effect of undermining the unenumerated right against self-incrimination.”
All these three grounds were dealt with together and a review was placed before this Court on appeal of the evidence given by the interrogating Garda Siochana with regard to the interrogation of the accused. On the trial within the trial referred to in these grounds, this accused gave evidence.
The learned trial judge in making the ruling clearly accepted the truth of the evidence given by the members of the Garda Siochana who had conducted the interrogation of the accused and rejected the evidence of the accused where that was in conflict with the evidence of the Garda Siochana. In substance, the accused’s evidence was to the effect, both that he had been subjected to threats, to coercive and harassing behaviour, and to physical harassment without actual assault, and that a substantial part of the incriminatory statements purported to have been made by him were not made by him at all, but were simply dictated by the gardaí, written down, and that he was forced or cajoled into signing the document so produced.
In my view, the learned trial judge was entitled to make an assessment which must necessarily depend on the credibility of the witnesses concerned as to the conflict of evidence that arose with regard to the admission of these statements. Once he concluded that the account given by the investigating garda was one which he could accept as being true beyond a reasonable doubt, he was entitled, on the terms of the evidence given by those members of the Garda Siochana, to admit the statements into evidence, and this submission must, in my view, fail.

Ground 7
“That the learned trial judge erred in law in holding that the doctrine of res judicata and/or issue estoppel did not apply to the issue of the admissibility of the alleged admissions made by the appellant.”
What was here being contended on behalf of the appellant was that because the Central Criminal Court (Barr J.) on the hearing of the charge of murder in December, 1985, held that by reason of an invalidity in the arrest and detention of the appellant which the learned judge held as a matter of law flowed from the fact that he was not being suspected of a terrorist offence, that even though that decision, which was purely a question of law, was overruled and set aside on appeal to the Supreme Court, that it constituted an issue estoppel or res judicata between the State and the appellant in regard to the admissibility of these statements which was available to the appellant in a charge on a different count of the indictment arising out of the same set of circumstances.
I am satisfied that such a proposition is wholly unsound and must be rejected. In order for there to arise an issue estoppel in any case, and I express no considered view on the special position it may have in criminal cases, it would be essential that there should be a valid and final decision of the particular issue between the parties. Where, however, a decision reached on a particular issue has been set aside on appeal it can no longer be considered a final or valid decision and cannot be availed of in subsequent proceedings by either of the parties concerned. This ground must also fail.
The further substantial ground put forward by this appellant was that contained at No. 11 of the grounds of appeal, which is as follows:
“That the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.”
Counsel on behalf of this appellant in making his submissions pursuant to this ground, in short, urged that where the only evidence implicating an accused person in the commission of a crime constituted admissions or inculpatory statements made by him whilst under what could be described as sustained interrogation in police custody, that the experience of the courts should make it a rule of practice similar to that laid down by the Supreme Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, relating to evidence of visual identification, that a judge should warn a jury that, whilst they were entitled to do it, that it should be ordinarily considered unsafe to convict on the uncorroborated evidence of the existence of such admissions. The judgment of Kingsmill Moore J. in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, not only laid down the special position with regard to evidence of visual identification but also laid down principles which are of general application in respect of the necessity or desirability of corroboration in criminal cases. At p. 37 he stated as follows:
“It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case, and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestability and lack of responsibility of children of tender years may find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries they should not convict unless they have weighed the evidence with the most extreme care. Similarly, the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it.”
In that judgment the learned trial judge, of course, went on in fact to extend it to the questions of visual identification.
I am satisfied that the broad principles laid out in this portion of the judgment in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 are correct but are capable of being expanded or clarified by a consideration of the category of cases in which judicial experience had by that time at least made it desirable that warnings concerning corroboration should be given. Sir James Stephen, in The General View of the Criminal Law, at p. 249, dealing not specifically with corroboration but with the allied topic of the situation in which juries may well acquit, even though uncontradicted sworn evidence of one witness imputes guilt, stated as follows:
“The circumstances may be such that there is no check on the witness and no power to obtain any further evidence on the subject. Under these circumstances, juries may and often do acquit. They may very reasonably say we do not attach such credit to the oath of a single person of whom we know nothing, as to be willing to destroy another person on the strength of it. This case arises where the fact deposed to is a passing occurrence – such as a verbal confession or a sexual crime – leaving no trace behind it except in the memory of an eye or ear witness.”
Lord Hailsham of St. Marylebone, L.C., in the judgment in Director of Public Prosecutions v. Kilbourne [1973] A.C. 729 in the course of his judgment suggests that the judge-made rule of the desirability of warning against convicting on the evidence of a witness without corroboration in a criminal case should extend to “the evidence of any principal witness for the Crown, where the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence.”
It is of importance that what is arising in the instant case is not a case of verbal admissions only, which in the words of Sir James Stephen leave no mark other than in the ear of the witness present; there are in this case two signed statements of admission which the jury could see and observe and in which the accused did not dispute his signature. Secondly, I do not think it can be said, even as a broad category, that there could be any assumption that a member of the Garda Siochana investigating the commission of crime has, in the words of Lord Hailsham, some purpose of his own in making a false statement against an accused.
Having considered these various statements of principle concerning the necessity for giving warnings about corroboration in criminal cases when charging the jury, I conclude that the broad assertion made by the appellant in this case that the fact that the evidence against him which is, undoubtedly, uncorroborated, was statements of admission made by him after sustained interrogation whilst in police custody, made the giving of a warning to the jury, against the danger of convicting without corroborative evidence of the facts set out in those admissions, necessary, is not a sound proposition of law.
I am aware that there have been cases in which an appellate court has found inculpatory statements made by persons under sustained interrogation whilst in garda custody, where they were not corroborated by other evidence incriminating the accused, to be unsafe as a basis for conviction. I am also aware of the public unrest necessarily arising from such decisions, and indeed, the concern which, for lawyers and lay persons alike, the concept of sustained interrogation in garda custody creates.
It does not seem to me, however, that the problems thus arising are amenable, as a matter of principle, to a general requirement for judicial warning in every such case against the dangers of convicting on foot of the evidence contained in such inculpatory statements, where it is not corroborated.
The possibility of such a warning in any given or particular case as being appropriate is, of course, clearly open. In his discretion, a trial judge may well, in the exercise of his jurisdiction to consider the validity of such alleged confessions or admissions as evidence, exercise an even more fundamental protection against a wrongful conviction arising from such confessions, and often does, by excluding them from the consideration of the jury.
It seems to me, however, that the necessary flexibility of the charge of a trial judge to a jury in a criminal case, required for the attainment of justice, must permit of a wide discretion, having regard to the particular facts of each individual case. Thus, for example, it would appear to me quite appropriate that in a case where verbal admissions, only, are being relied on that a judge should specifically direct and warn a jury as to the difference in quality and, possibly, in persuasiveness of such admissions in general, as compared to written admissions signed by an accused person.
Where an accused person makes allegations, as was done in this case, of harassment and sustained oppression in the process of the interrogation, it is absolutely essential that the learned trial judge should put those matters before the jury and put them before them in a very clear and unqualified form, indicating to the jury, in accordance with the onus of proof, that if they should raise in their minds any doubt as to the truth of the admissions alleged to have been made, that the requirements of justice are that the accused should be acquitted.
As appears from the portion of this judgment which is to follow, dealing with the question of the manner in which the learned trial judge dealt in detail with the allegations concerning the voluntary and truthful nature of these statements, in his charge to the jury, I am satisfied that in this particular case, on the facts of it, the trial judge’s charge was adequate and was sufficiently protective of the accused against the risk of a wrong and/or undue conviction, notwithstanding the absence from it of any specific warning concerning the risks of convicting on the basis of statements of admission or confession which were not corroborated by outside evidence.
With regard to the judge’s charge to the jury, a further issue arose on behalf of each of the accused at the trial and formed a part, though only a minor part, as I understood it, in the submissions made on this appeal. By reason of its importance, however, it is necessary that I should deal with it.
At the trial each of the accused gave evidence concerning the circumstances surrounding the taking of statements from him at the trial within a trial as a result of which the learned trial judge ruled that the statements taken were admissible in evidence before the jury. Broadly speaking, the allegations made by each of the accused at that hearing were to the effect that they were harassed, threatened and, to an extent, assaulted and that they were induced to make statements by an inducement involving in each case the situation of their respective wives who were in custody. In each case, also, it was stated by the accused that the statements were not of their own creation but that words were written down or dictated by members of the Garda Siochana, and they were induced or cajoled or bullied into signing the document so written out.
At the trial, in the presence of the jury, these allegations were repeated and the two accused, each of whom gave evidence before the jury on his own trial, in addition to denying participation in the crime and giving an account of his movements on the evening when the crime was committed, gave again the evidence in substantially identical terms to what had been sworn to by them in the trial within a trial, in the absence of the jury.
In those circumstances, it was specifically contended on behalf of each of the accused, prior to the commencement of the judge’s charge that the learned trial judge should direct the jury that apart from reaching a conclusion with regard to whether the confessions which had been admitted in evidence were true and genuine, that they should firstly reach a conclusion as to whether they were voluntarily made and accordingly should have been admitted into evidence, and in effect, that if they concluded that they were not voluntarily made that they should not make any further inquiry as to whether they were or were not true.
This application was rejected by the learned trial judge, and I am satisfied that he was correct in so doing.
Having regard to the decision of this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, it is clear that the function of ruling on the admissibility of confessions or incriminating statements alleged to have been made by an accused is a mixed question of fact and law which falls within the function, in a trial had with a jury, of the trial judge. I am satisfied that it follows from that fact that there cannot be, as it were, any question of an appeal from or review by the jury of the decision of the trial judge to admit statements into evidence. If a judge should err, either in the principles which he applied or by acting on insufficient or non-existent evidence in reaching a conclusion that statements were admissible, then, he must be corrected on appeal by an appellate court.
Where, as has occurred in this case, the issue with regard to the admissibility of statements turns largely on allegations of threats, assault, inducement or harassment, or of what is described as the “planting” of statements, then, the function of the jury is, I am satisfied, as follows.
It must be clearly directed by the trial judge to have regard to all the evidence which is before it, including all the evidence suggesting that the statement has been obtained by any of the unlawful methods which I have mentioned above for the purpose of ascertaining whether they are satisfied beyond a reasonable doubt that the confession or incriminating statement made by the accused is true and is a sufficient proof of his guilt.
A jury is not bound by a finding of fact made by a trial judge in the course of his ruling on the admissibility of a statement such as, for example, a rejection by him of an allegation that a member of the Garda Siochana assaulted the accused whilst in his custody and thus obtained the statement from him. It must be made clear, whether by specific warning or by a positive direction to a jury that their function in having to be satisfied beyond a reasonable doubt as to the truth of a voluntary statement admitted into evidence before them necessarily involves an examination by them of allegations of any description which are relevant to the question as to whether the statement was truly voluntarily given or not. It should be made clear to them that if they have a reasonable doubt as to whether a statement was truly voluntarily given that that would form a very solid ground for also entertaining a reasonable doubt as to whether it was true.
I have very carefully considered the entire charge of the learned trial judge in this case. In considerable detail, notwithstanding the length of the case, and with complete accuracy, he put before the jury the allegations of every description made by each of the accused, going to the question as to whether these statements were voluntarily given. The terms of his charge clearly made that question relevant, and highly relevant, to the question as to whether the statements could be satisfactorily accepted by the jury beyond a reasonable doubt as being true.
Having regard to that conclusion concerning the nature of the charge, I am satisfied that this ground of appeal must also fail.
The appeal of Christopher Quilligan
The first ground of appeal submitted on behalf of this appellant was at (a) in the grounds, in the following terms:
“The said honourable Court erred in law in the exercise of its discretion to allow the trial to proceed.”
The facts concerning this ground on behalf of this appellant are as to the actual timing and delay in the trial, between December, 1985, and October, 1989, already set out in this judgment, dealing with the similar ground put forward on behalf of the appellant Patrick O’Reilly.
In the case of this appellant, however, further facts are material to this ground. They may very shortly be summarised by saying that having regard to a statement given to the Garda Siochana and forming part of the book of the evidence by a Mrs. Gwendolina Murphy who lived immediately beside this appellant, she would, on the night when the murder and burglary occurred, have placed this appellant in his own flat at Blackpool in Cork, from approximately 1.45 am until 2.00 am. This witness gave evidence that she was on bad terms with the appellant and on the particular night abused him because he was noisily arguing and fighting with his wife. If that evidence were accepted by a jury as being true, then, on the evidence given by the witnesses with regard to the happening of the attack on the house of the deceased Mr. Willis and the burglary happening therein, it could persuasively be argued that it would not have been possible, having regard to the distance between where this appellant was seen by Mrs. Murphy between a quarter to two and two o’clock on this particular night, for him to have taken part in the raid on the deceased’s house. Mrs. Murphy gave evidence on the trial in December, 1985, and was still alive, though apparently indisposed at the time when the case was adjourned at the request of the Director of Public Prosecutions, in the spring of 1989. She died shortly before the holding of the trial before Costello J. in October, 1989. The short submission is that having regard to the long delay between December, 1985, which was the first trial before Barr J. on the charge of murder and the trial which commenced in October, 1989, on the charge of burglary, before Costello J., a delay to which the appellant cannot be said in any way to have contributed, even though that delay might not be said to be the fault of the Director of Public Prosecutions, that the prejudice arising to this appellant from the intervening death of Mrs. Murphy whose evidence constituted in effect or potentially an alibi, in a case where the only evidence against the accused, of any real significance, was the evidence of admissions alleged to have been made whilst in garda custody made it unfair to permit the trial to proceed.
In The State (O’Connell) v. Fawsitt [1986] I.R. 362, in a judgment with which the other members of the Court agreed, I stated the principles applicable to this question of excessive delay in the prosecution of a criminal trial in two separate paragraphs at page 379. They are as follows:
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition . . .
I have come to the conclusion that there was in this case an excessive delay prejudicial to the prosecutor’s chance of a fair trial. The determining feature, in my view, is the non-availability of one of the witnesses who would have been a material witness for the defence. It is not disputed on the facts which were before the High Court that such a witness was available and apparently willing to give evidence at earlier stages but, with the passage of time, has become unavailable and cannot now be made available as a witness. That fact alone, having regard to the extreme length of the delay, makes this a case in which, in all the circumstances, I am satisfied the delay can be considered as being both excessive and prejudicial and that, accordingly, the prosecutor was entitled to his order of prohibition.”
In The State (O’Connell) v. Fawsitt [1986] I.R. 362, the return for trial of the prosecutor, which was on two charges of assault causing actual bodily harm, was dated the 8th July, 1982, and the incident had occurred in January, 1981. Eventually, after a number of adjournments caused by the arrears of work listed for the Circuit Criminal Court in Cork, the trial was finally fixed for the 30th April, 1985. All the intervening adjournments had been opposed on behalf of the prosecutor in that case but the gap between the order returning the prosecutor for trial and the trial eventually prohibited was under three years.
I have carefully considered the facts of this case and even accepting, as I do, that the Director of Public Prosecutions cannot be said to have been at fault contributing to this delay, I am driven to the conclusion that, having regard to the general right of an accused person to a trial with reasonable expedition, mentioned by this Court in the judgment in In re Paul Singer (No. 2) (1960) 98 I.L.T.R. 112 and referred to by me in The State (O’Connell) v. Fawsitt [1986] I.R. 362, and having regard to the prejudice that, undoubtedly, potentially exists from the non-availability of the witness Mrs. Gwendolina Murphy, that in the interests of justice this trial which commenced in October, 1989, should have been prevented upon the principles outlined in these cases. On that basis, therefore, I would allow the appeal of Christopher Quilligan and, having regard to the grounds on which I would be allowing it, there can be no question of any order for a re-trial.

Hederman J.
I agree with the conclusions of the Chief Justice and would propose to offer my views on two topics only, the matter of corroboration and the respective functions of judge and jury in regard to the admission of confession evidence.

The last substantial ground of appeal before this Court in the case of Patrick O’Reilly was ground (No. 11), that the learned trial judge erred in law in not holding that it was essential, in the interests of justice, that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.
Custodial interrogation is not per se illegal when it is not conducted in a manner which is an abuse or a violation of constitutional or legal safeguards.
Members of the garda who desire to interrogate a suspect who is in custody must bear in mind that he has the following rights:
1. He has the right to remain silent and to be informed that if he does say anything it may be used in evidence.
2. He has the right to have a legal representative of his own choice present.
3. That he cannot be detained incommunicado.
4. That he has the right to the presence of a medical practitioner of his own choice.
Any assertion of these rights must be honoured. (See In re The Emergency Powers Bill, 1976 [1977] I.R. 159 and now s. 9 of the Criminal Justice Act, 1984).
If a suspect is reluctant to answer questions he must not be offered inducements to confess including suggestions which minimise the legal or the moral seriousness of the crime under investigation.
It must not be suggested that silence is proof or evidence of guilt. The interrogation must be conducted to protect the innocent and garda officers must not act as though the suspect is guilty.
If all of these safeguards have been observed and the detained person agrees to or expresses a desire to answer questions or to make a statement then all that he says may be used in evidence provided that the prosecution establishes that the statement was voluntary and that it truly records what the detained person said. If the evidence is admitted the prosecution must still prove the truth of any such incriminating material.
The voluntariness of an admission is determined by examining and considering the totality of the circumstances including the characteristics of the detained person, the techniques and duration of the interrogation and the environment in which the interrogation takes place.

It is true that the history of criminal trials discloses that there have been convictions procured by fabricated evidence or by innocently mistaken evidence or by evidence procured in circumstances which, if known at the time of the trial, would have rendered it inadmissible. The danger of honest mistake is well illustrated in the decision of this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33. But insofar as the danger of fabricated evidence is concerned it appears to me that a rule requiring corroboration of the making of admissions would serve no useful purpose as those most likely to give corroborative evidence would be persons themselves guilty of crime. While it may be said that members of the garda, by reason of their profession, have a special interest in bringing law-breakers to book, it would not on that account be reasonable, in effect, to equate them with accomplices in a crime.
I am satisfied that if all of the conditions I have earlier referred to are observed, particularly the presence of a legal representative, if asked for, this would be a greater safeguard than a requirement of corroboration. If a confession is the sole evidence of the accused’s guilt and if it has been established that the confession was made in circumstances which follow the criteria that I have already referred to, I do not see why it should be necessary to require corroboration of that which the accused, as a suspect, has asserted to be true, even if he subsequently denies the truth of it. During the trial it may indeed be established that the statement is untrue, but that is a different issue. I draw a distinction between the necessity for corroboration of the evidence of a single witness who is not the accused and the admissions of the accused himself. The former topic does not fall for decision in this case. In the latter case it is the accused’s own account which raises the issue and frequently the accused may be the only person who has any evidence to offer as to the perpetration of the crime. I cannot accept the proposition that where an accused has truthfully admitted guilt in the course of the investigation that such admission is insufficient without corroboration.
So far as admissibility is concerned, it must be borne in mind that this raises a mixed question of fact and law. The law, which is the sole preserve of the trial judge, falls to be determined by him in the light of the facts in each particular case.
As this question was so recently reconsidered by this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, I would not depart from that decision. In the result it is my opinion that the factual determination in this case in relation to the admissibility was properly undertaken by the trial judge. However, it must be borne in mind that this determination was only for the specific question of the admissibility of evidence. It did not have the effect of removing from the jury the right to determine the truth of the disputed facts and in consequence to give such weight as they thought proper to the evidence admitted by the trial judge. If the matter is pursued by the defence, after the ruling of the trial judge, it is his duty to instruct the jury on the legal effect and consequences of their not being satisfied as to the truth of the prosecution’s evidence in support of the claim that the admissions relied upon were obtained in circumstances which did not raise doubts as to their truth or as to the fairness of the circumstances of the interrogation.
For these reasons I am satisfied that the learned trial judge did not err in law in not instructing the jury that it would be dangerous to convict the appellant on the uncorroborated evidence of the admissions made by him while in garda custody.

McCarthy J.
I have read the judgment of the Chief Justice. I adopt the statement of facts contained in it and I respectfully agree with his conclusions on grounds (1), (2), (3), (4), (5), (7), (8), and (9).
Ground Number (11)
“That the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission made by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.”
In argument this ground was limited to the contention that following the rule of practice laid down by this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, a judge should warn a jury that whilst they are entitled to do so it should ordinarily be considered unsafe to convict on the uncorroborated evidence of the existence of such admissions. In that case, Kingsmill Moore J., delivering the judgment of the Court, said at p. 37:
“It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestibility and lack of responsibility of children of tender age find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence, unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries that they should not convict unless they have weighed the evidence with the most extreme care. Similarly the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases, have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it. It is submitted by Mr. Sorahan, counsel for the prisoner, that the time has come for such an extension, that accumulated experience has demonstrated the necessity for warning a jury as to the mistakes which can be made, and which have been made, in the identification by witnesses of persons accused and, in particular, that a jury should be told that an identification parade, though the best available method of confirming identification, is very far from infallible.
Mr. Sorahan referred to cases such as the Beck Case and the Slater Case , which have passed into legal history as classical examples of erroneous identification and to two recent cases in our jurisdiction where persons had been convicted on what appeared to be entirely satisfactory identification but where subsequent investigation proved the identification to have been wrong. Judicial experience, including that of some members of this Court, could provide further instances where positive and honest identification was shown to be mistaken.”
Towards the end of the judgment at pp. 39 and 40, Kingsmill Moore J., said:
“We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.
This direction is not meant to be a stereotyped formula. It may be too condensed to be fully appreciated by a jury without some further explanation and the facts of an individual case may require it to be couched in stronger or more ample terms, as when the witness or witnesses had no previous acquaintance with the appearance of the accused or had only an indifferent opportunity for observation. It does, however, contain a minimum warning which should be given in any case which depends on visual identification. No specific reference is made to ‘corroboration in a material particular implicating the accused’. An item of evidence falling within this formula may, according to its nature, have very little or very great probative value. This consideration is meant to be covered by the words ‘in the light of all the circumstances, and with due regard to all the other evidence in the case’, and it is for the judge to deal with the lesser or greater probative value of any item of corroborative evidence.”
Instances of a statutory requirement of corroboration may be found in s. 3, sub-s. 2 of the Illegitimate Children (Affiliation Orders) Act, 1930; s. 105 of the Road Traffic Act, 1963; s. 30 of the Children Act, 1908, as amended by s. 28, sub-s. 2 of the Criminal Justice Administration Act, 1914; s. 13 of the Perjury Act, 1911; s. 48 of the Offences Against the Person Act, 1861; ss. 1, 2 and 6 of the Criminal Law (Amendment) Act, 1935, these latter now subject to s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990.
Rules of practice as to the danger of coming to a conclusion on uncorroborated evidence have been established in a variety of cases. In the criminal law, such a warning must be given in respect of the evidence of an accomplice ( Attorney General v. Levison [1932] I.R. 158), the justification being that an accomplice will tend to minimise his own role in the crime and exaggerate that of the accused; in sexual offences generally because, it is said, the charge is easy to make and difficult to refute or can be the result of hysterical or vindictive motives; the sworn evidence of children because they are more susceptible to the influence of third persons and may allow their imaginations to run away with them; in claims against the estates of deceased persons, because of the absence through death of one of the parties to the transaction; in matrimonial causes because, it is said, “experience has shown the risk of a miscarriage of justice in acting on the uncorroborated testimony of a spouse in this class of case” (Simon P. in Ali v. Ali [1965] 3 All E.R. 480).
The list is not closed. In 1977 an official inquiry (The Ó Briain Committee) was set up to consider what additional safeguards might be necessary for the protection against ill-treatment of persons in Garda custody, having regard to allegations made in relation to persons held in such custody pursuant to s. 30 of the Offences Against the State Act, 1939, or s. 2 of the Emergency Powers Act, 1976, and for the protection of members of the Garda Siochana against unjustified allegations of such ill-treatment. The Committee (Prl. 158, 1978) did make recommendations and many of these have been incorporated into the Criminal Justice Act, 1984. It would be closing one’s eyes and ears as a member of the public not to recognise recurring public disquiet in respect of convictions in Ireland and in the United Kingdom based upon uncorroborated evidence of admissions allegedly made while in police custody, when no warning as to the danger of acting on such evidence has been given to a jury, if appropriate, or to the court itself, if there is no jury. No argument has been advanced that a conviction may not be obtained on such evidence if it is uncorroborated; the argument is merely that there should be a warning to the jury or to those acting in place of the jury.
Some of the justification for the requirement or desirability of corroboration derives from the nature of the offence as in sexual cases (now qualified by the Act of 1990); from the age of the witness, as in children’s cases; from the motive of the witness as in accomplice cases; from, inter alia, the risk of a miscarriage of justice as in matrimonial cases. They are all cases related to the quality of the witness as such. That is not the immediate question here where we are dealing with the use of confessions, whether written or oral. It is the confession itself that is the evidence; this is particularly concrete in the case of a written confession. The evidence of those called to prove the voluntary nature of the confession is ancillary to the critical evidence. The trial judge decides on the issue of admissibility of that confession; in doing so he must come to a conclusion of fact on whether or not there was any inducement or threat or oppressive conduct such as to make it other than voluntary. An instance of a conclusion by the Court of Criminal Appeal that it was not satisfied that statements made by an accused were voluntary may be found in The People (Director of Public Prosecutions) v. Breathnach (1981) 2 Frewen 43; such a conclusion may reflect upon those who testify as to the voluntary nature of the confession; so does any conclusion that rejects the evidence of a witness. The problem is the greater because of the established practice, so ruled by the trial judge, that it is for the trial judge and him alone to rule upon the issue as to whether or not the confession was made voluntarily; it is for the jury to determine whether or not that voluntary confession may be accepted as true in whole or in part. Both inquiries, that by judge and that by jury, tend to cover the same ground and the trial judge in the instant case was at pains to deal extensively with all of the allegations of impropriety made against the gardaí. As I will advert later in this judgment, the issue of whether or not the confession was made voluntarily, a mixed issue of fact and law, by its determination by the trial judge alone, removes from the jury a determination of one of the issues of fact relevant to the guilt or innocence of the accused. This consideration seems to me to be highly relevant to the issue concerning corroboration. One must address the question as to how the trial judge should charge the jury on this aspect. In The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, Kingsmill Moore J. identified the minimum warning which should be given to a jury in a case which depends on visual identification, this founded upon the fact of there being a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous. The “corroboration in a material particular implicating the accused” was to be found in the due regard to all the other evidence. But, in the case of contested admissions, what is the appropriate direction to the jury? There is no difficulty as to the direction as to corroboration itself – this may be found in a variety of other evidence, including, as in this case, the fact that a significant detail in the admission was borne out by subsequent discovery at the instance of the person in detention. Corroboration does not depend upon the evidence of other gardaí, one should look elsewhere. But, if the jury must be told why corroboration is required, what is the formula for so doing? The judicial inquiry into the voluntary nature of the admission must be presumed to have been adequately carried out but it is an inquiry to resolve an evidential problem, not the question of guilt. In my view, it is entirely appropriate that a trial judge should inform a jury that he has held such an inquiry and was satisfied, for the purpose of admitting the same in evidence, that the prosecution had established that the admission was made voluntarily. That, however, does not in any sense preclude the jury, when evaluating the admission, from looking for support or corroborative evidence in a material particular from outside the admission itself. A person making a statement may, for a variety of reasons, not least that being a wish to please the questioner, admit to doing something he did not do or, in some cases, he could not have done. The jury then may, properly, be cautioned of the danger of convicting where no such corroboration is to be found and conviction would entirely depend upon the admission.
Having regard to the added precautions that have been created by the Act of 1984, it may be said that matters of this kind are for the legislature only. I do not agree. We are here dealing with a critical part of the constitutional frame, the right to a fair trial, ordinarily before a jury. Statutory provisions as to corroboration have been made in cases involving children and otherwise. Yet this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 introduced this specific requirement in regard to the charge to the jury in cases involving visual identification. Of course, the legislature may introduce this or even greater requirements in respect of corroboration; but it may not. The executive, of which the Gardaí form part, may not decide that such a precaution is necessary and, therefore, will not move the legislature to that end. In my view, this Court should, following the example of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, declare it to be an essential part of the procedure for a fair trial in criminal cases where a conviction must depend upon the validity of evidence contained in admissions, written or otherwise, that the jury be warned of the danger of convicting on such evidence if there is no corroboration for it. If one needs to identify a motive then the very wish to secure a conviction, particularly when he is convinced of the guilt of the person in custody, itself constitutes a purpose of his own on the part of the investigating garda.
In the course of his charge to the jury, the learned trial judge said:
“There is another legal point to which some reference has been made and which I should touch on briefly. It does happen that accused persons make a full confession and are tried, and the jury decides that the confession is a genuine one and a true one given voluntarily, and that is sufficient evidence to find the accused guilty. The law does not require any corroboration of confession evidence. Now, I am sure you will have seen discussions in the newspapers, television programmes, perhaps, on whether this is a good law or a bad law, whether there should be a law which provides for corroboration of confessions, but you are not concerned whether the law is a good law or not, neither am I. This court has to apply the law, and the law is that if you come to the conclusion that the confessions, in either or both of these cases, were true confessions, then you must find the accused guilty, even if there was no corroboration.”
This is a correct statement of what was understood to be the law. As I have sought to indicate, in my view it cannot without qualification be accepted as the law now. The law, as yet, does not require corroboration but, in my judgment, it does require that a jury be warned that it is dangerous to convict on admissions made while in police custody, voluntary or otherwise, unless the admissions are corroborated in a material way. It follows that a conviction based upon a direction in law as I have cited cannot stand. It was not suggested in argument that if the direction were wrong, the Court should apply s. 5, sub-s. 1 (a) of the Courts of Justice Act, 1928.
The question of the statement being voluntary
In accordance with the decision of this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, the learned trial judge held a trial within the trial to determine the mixed question of fact and law as to whether or not the statement made by this appellant was voluntary. Having concluded that it was voluntary, he admitted the evidence as to the making of the statement. In the course of his charge to the jury he made a number of references to this statement:
“(a) Now, no difficulty will arise in this case in regard to that definition [the offence of burglary] because if you accept that the statements of the accused, the confessions of the accused, are true, then they are guilty of burglary – and that brings me to what I will come back to later, namely, that the issue in the case, the important, vital issue in the case, is whether the confessions and admissions of guilt are true. If you come to the view that they are true, then the person who made that confession or admission is guilty of burglary and you find the answer ‘guilty’.
(b) You have heard an explanation given by each of the accused as to how they made what they say was a false confession. If having heard that explanation you think it might be true but that you are not certain, then the accused is entitled to the benefit of the doubt.
(c) There is another legal point to which some reference has been made and which I should touch on briefly. It does happen that accused persons make a full confession and are tried, and the jury decides that the confession is a genuine one and a true one given voluntarily, and that is sufficient evidence to find the accused guilty.
(d) Like a lot of long cases, at the end of it the issue that has to be determined becomes very clear – now, that doesn’t mean that it’s easy, but it becomes very clear. And the issue which you have to determine is whether or not the confessions and admissions of guilt or each of these accused were true. If they made a true confession then they are guilty; if the confessions were false then they are not guilty, and you have to decide then whether or nor these accused made false confessions or true confessions, bearing in mind the words I told you about the onus of proof being on the prosecution to establish beyond a reasonable doubt that the confessions were true.
(e) There is no evidence against Mr. O’Reilly other than his own admissions and confession. And if you decide beyond any reasonable doubt that his confessions are true then you must find him ‘guilty’.
(f) Ladies and Gentlemen, the next various complete piece of evidence is how the statement was taken, because he says he didn’t dictate it at all; he says it was presented to him and he just signed it, something that had been made up. You have to decide where the truth lies in that bearing in mind the onus of proof that is on the prosecution. Then, ladies and gentlemen, you come to the next day, the 13th December. Now, the prosection don’t rely solely on the statement that he made on the night of the 12th, because they say this is a guilty man who on the next day drove us out and showed the gardaí the route they had taken, and they say that must be a guilty person because he was in fact impliedly admitting that he had been on the journey on the night of the crime and was helping the guards in showing them where they had gone. You have heard his explanation for this and he explained how he was prepared to do anything to get out of the Garda station. He was shocked when he heard that he was going to stay for another 24 hours, and he went out for the purpose of getting out of the station and he was prepared to go along with what was a charade as far as he was concerned, pretending that this was the journey that they took on the night of the crime. Similarly, when he came back the situation was that he was given a statement which, again, he decided, he was prepared to sign anything and he signed the statement, which indicated that what he had said on the journey was accurate and true and he signed admitting that he had said it. Now, ladies and gentlemen, we know that he was brought down and we know that he saw the co-accused in the afternoon after dinner time and we know that he then saw his wife. And he said this absolutely broke him, seeing his wife and he says that when he was interviewed by MacGillicuddy and Murphy that they put it to him ‘it’s your buddies or your wife’, and they were putting it to him ‘if you make a statement implicating Quilligan, then your wife will get out.’ That is denied by the gardaí and you have to consider where the truth lies. His case is that his will was so overborne by what had happened to him that he would sign anything and that he was prepared to sign anything to get his wife out. The Garda evidence isn’t so, that he gave his signed confession because he was guilty, because he knew he was guilty, because he felt that there was no point in going on in denying his guilt on the night of the 12th, and that on the 13th he was accepting the fact that he had confessed to the crime and was going along with the situation that had then resulted. That, ladies and gentlemen, is the case against Mr. O’Reilly, or rather the highlights of the case, as I see it, and the conflicts which you have to resolve. It is your duty, ladies and gentlemen, if on the consideration of all the evidence you have no reasonable doubt but that the confession which Mr. O’Reilly made was a true confession, it is your duty to find him guilty. It is your duty upon having considered all the evidence in the case against Mr. Quilligan if you have no reasonable doubt but that his confession was true, to find him guilty. If however, ladies and gentlemen, you have a reasonable doubt that the confession isn’t true, the accused Mr. O’Reilly, is entitled to the benefit of that doubt and then you find him not guilty.”
At the conclusion of the charge, counsel for Mr. O’Reilly supported the application made by counsel for Mr. Quilligan which was as follows:
“The second matter of law that I would ask your Lordship to deal with and which your Lordship hasn’t dealt with at all in my respectful submission is the onus of proof that rests upon the prosecution in relation to a statement. And in my respectful submission your Lordship ought to tell the jury what the legal position is and what the State must establish, where they seek to rely upon a statement, namely, my Lord, that it is freely and voluntarily given and that it has not been obtained my Lord by trick or threat, ill-treatment, inducement or as a result of the mind or will of the accused having been overborne.”
To this the Judge replied:
“I disagree, Mr. White. I think that was my job. I did that on thevoir dire. It is then a matter for the jury to decide whether the statement was true.”
Having regard to this earlier ruling, counsel for Mr. O’Reilly quite properly did not do more than formally support the earlier submission. These submissions reflected a submission made earlier that apart from reaching a conclusion with regard to the truth or genuine nature of the confession, the jury should firstly reach a conclusion as to whether it was voluntarily made.
In The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, the Chief Justice said at pp. 473 and 474:
“For the reasons which I have sought to outline in this judgment, I have come to the conclusion that the interests of justice in criminal trials with a jury would be best and most likely served by a return to the procedure of the voir dire and to the principle that issues of both fact and law necessary to determine the admissibility of any evidence should be tried by a judge in the absence of the jury. As I have already indicated, this in no way inhibits the trial of the same issues of fact in the presence of and before the jury, their relevance being not towards the legal admissibility of the evidence being contested, but rather towards its weight or credibility.”
Henchy J., at p. 488, said:
“But it is also for the judge, when at the end of the case he addresses the jury, to direct their attention to the circumstances of the questioned statement and to tell them that it is for them to decide, having regard to all the evidence, what probative value, if any, they should give to the statement.”
Griffin J., at p. 490, said:
“If the statement survived that test, it was admissible in evidence and was put before the jury as part of the evidence for the prosecution, the truth of the statement being a crucial question for the jury. It was then the right of counsel for the defence to cross-examine again, in the presence of the jury, the witnesses who had given evidence in their absence, in the hope of persuading the jury that the statement had been improperly obtained and was therefore unreliable. It was the function of the jury (after proper direction in that behalf by the trial judge) to give to the statement such weight and value as in all the circumstances of the particular case they thought it deserved.”
Hederman J. agreed with the judgment of the Chief Justice. Walsh J. dissented on the substantive issue as to the method of holding the trial within a trial, commonly called the voir dire. At p. 480 he said:
“The constitutional function of the jury is to decide questions of fact. In the type of criminal case in which the success of the whole prosecution depends upon the admissibility of a statement by an accused person (cases of which seem to have become more frequent
in recent years) it would seem incongruous if the most vital facts of the case, namely those which will govern the admissibility of the evidence without which the prosecution must fail, should be taken away from the jury. Admittedly until The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, it was always the practice for the trial judge alone to decide these matters but the whole question of evidence obtained by unconstitutional methods only surfaced with The People (Attorney General) v. O’Brien [1965] I.R. 142. The law as expounded in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was to adapt to the new situation, as indeed the law did when the Judges’ Rules were formulated and various other rules of evidence dealing with corroboration etc. The whole purpose of judge made rules is to adapt the law to changing conditions. The purpose of the rule enunciated in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was to ensure that the essential facts in a case are to be decided by the tribunal whose exclusive function it is to decide facts, namely, the jury. In the case of a court of a single judge or several judges which act without a jury, both functions, namely, the finding of fact and the legal ruling based upon the resolution of the issue of facts, must be made by the said tribunal, which thus makes for a much more difficult situation than when the task is divided between the judge and the jury.”
In Chan Wie Keung v. R. [1967] 2 A.C. 160, a case cited in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, Lord Hodson reviewed a number of decisions including the observation of Byrne J., giving the judgment of the Court of Criminal Appeal in England in R. v. Bass [1953] 1 Q.B. 680, who said “when a statement has been admitted by the judge, he should direct the jury to apply to their consideration of it the principle as stated by Lord Sumner, and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.” This was criticised by the High Court of Australia in Basto v. R. (1954) 91 C.L.R. 628, where it was stated that the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect, stating, “A confessional statement may be voluntary and yet to act upon it might be quite unsafe; it may have no probative value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth.” In Chan Wie Keung v. R. [1967] 2 A.C. 160, in the trial in Hong Kong, the judge had given a general direction to the jury that they must be satisfied beyond reasonable doubt of the guilt of the appellant and that, if they had any doubt about the confessions, they must acquit, and that it was for them to give such weight and value to the confessions as they thought proper. The judge did not add a further direction that the jury must be satisfied as to whether the confessions were made voluntarily, and if not so satisfied they should give no weight at all to them and disregard them. But for a technical difficulty the majority of the Court of Appeal would have allowed the appeal on the ground that it was necessary for the judge to have given the further direction leaving the issue of the voluntariness of the statement to the jury notwithstanding that the judge had given his ruling as to its admissibility. It was held that the judge did not follow the course of giving a specific direction that the jury must be satisfied beyond reasonable doubt as to the voluntariness of the confessions before giving them any consideration.
This decision was followed in R. v. Ovenell [1969] 1 Q.B. 17 and R. v. Burgess [1968] 2 Q.B. 112, both decisions of the Court of Appeal in England.
Article 38, s. 5 of the Constitution states that:
“Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.”
Trial includes the resolution of all issues of fact. As Henchy J. said in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384″in which the jury, constituted in a manner calculated to ensure the achievement of the proper exercise of their functions, would, under the governance of the judge, be the arbiters of all disputed issues of fact and, in particular, the issue of guilt or innocence.” In the same case, Finlay P., as he then was, put the question “If the legislature were to purport to enact a statute relating to particular charges not coming within the exceptions I have already outlined (envisaged in Article 38, s. 5 itself) providing that a portion only of the facts necessary to determine the questions of guilt or innocence should be determined by the judge, would such legislation be consistent with Article 38, s. 5?” The question was not answered in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384, and any reliance upon The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was weakened by The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460. The question of the admissibility of a confession may depend, in part, on the resolution of an issue of fact – were there threats, was there an inducement etc.What follows from the resolution of these issues is a question of law. I am unable to reconcile the constitutional guarantee of trial by jury with an exclusive right in the trial judge to determine the issue as to whether or not a confession was voluntarily made. In The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, as referred to in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, Walsh J. said at p. 86 of the report:
“A similar situation arises with regard to the voluntary character of a statement. It is for the trial judge, in the first instance, to decide upon the admissibility; but he cannot decide upon the truth of the statement. A judge in such a case must direct the jury that they must be satisfied that the statement is true, or true in material respects, before they can accept it as evidence to be acted upon. In many cases consideration of this matter may involve the jury in considering and arriving at a conclusion on the circumstances under which the statement was made or obtained.”
Clearly, a statement may be involuntary, being obtained by threats, but true; (historically, it was only statements obtained under torture that were accepted as true;) statements made voluntarily may be untrue; involuntary statements may be untrue and voluntary statements may be true. There is no norm. In my view, to exclude the jury from a consideration of whether or not a statement was voluntarily made is to deny the accused the constitutional right to trial by jury. That right is not ensured by limiting the jury’s function to a determination of whether or not the statement is true even while directing the jury that the determination of truth or otherwise may depend upon their view as to the various allegations of impropriety against, as in this case, the gardaí. Apart from the reference at citation (c) in the charge of Costello J., there is no indication given to the jury that they are concerned with whether or not the confession was given voluntarily; in context, I believe the expression”given voluntarily” there was in no sense an invitation to the jury to enter into that inquiry. From my experience at the Bar, I am aware of a number of instances in which, the judge having ruled in favour of admission of the statement as having been voluntarily made, the issue was further left to the jury for their consideration at the end of the case.
For these reasons, I am satisfied that this appeal should be allowed and the conviction set aside. I would order a new trial.
Appeal of Christopher Quilligan
Following the conclusions that I have reached in respect of the appeal of Patrick O’Reilly it follows that this conviction must also be set aside. The question remains as to whether or not there should be an order for a new trial. In this case there were circumstances which did not arise in the other. They are summarised in the judgment of the Chief Justice and concern the evidence of the late Gwendolina Murphy. Mrs. Murphy gave evidence at the first trial in December, 1985, and was cross-examined; that evidence was recorded. After the conclusion of the appeal to this Court and the hearing of the subsequent motion, the case itself, according to the court record, was mentioned in the Central Criminal Court on the 10th March, the 12th May, the 21st July, and the 15th December, 1988, and on the 17th April, 1st May, and 27th June, 1989, when the trial on this indictment commenced before MacKenzie J. The objection detailed by the Chief Justice was then taken on behalf of both Patrick O’Reilly and Christopher Quilligan and rejected by the trial judge. On the second day of the trial, due to the absence of an important witness, the trial was adjourned and the jury discharged. The motion brought by the Director had been filed in December, 1986, and was heard in this Court on the 21st July, 1987, but judgment was not delivered until the 29th July, 1988. That motion was, of course, in respect of the murder charge, no order for re-trial having been made on that charge; the remaining charge, that of burglary, came before the court in December, 1988, and on the dates in 1989 when, earlier, it was adjourned by consent and then on the 28th June, 1989, adjourned as I have indicated. As stated, the argument advanced before Costello J. at the trial under review and in this Court was also made save that before MacKenzie J. it related only to the evidence of Mrs. Quilligan senior and not to that of Mrs. Murphy.
No application was made to the trial judge to admit in evidence the transcript of what Mrs. Murphy had said at the trial before Barr J. in December, 1985. If such application had been made and the relevant authorities cited, it may well be that the learned trial judge would have admitted such evidence. Support for such a course is to be found in O’Connor, Justice of the Peace Volume 1, at p. 418, Stephen Evidence 5th ed. at p. 47 and in R. v. Hall [1973] 1 Q.B. 496, where a number of judicial precedents were cited. I recognise that there may be a disadvantage in not having the jury see and hear the witness but that is a feature that attends every case where a witness dies or is for some other reason unavailable. In many such cases there is no remedy because what may be called a s. 22 procedure had not been adopted and there had been no first trial. It might, on the one hand, not be the most satisfactory evidence; on the other, a written record of Mrs. Murphy’s evidence might well have carried more weight than the evidence of the witness herself.
That does not determine the issue. The real question is whether or not, because of a mishap such as this, a trial is not to proceed. There has been a very significant delay between the trial in December, 1985, in respect of an offence allegedly committed in November, 1984, and the hearing before Costello J. in November, 1989. It was not of the Director’s making no more than it was of the accused’s making. It happened. Part of it was due to delay in this Court. In my view, none of these circumstances are truly germane to the issue. In The State (O’Connell) v. Fawsitt [1986] I.R. 362, there had been excessive delay; some of the intervening adjournments had been opposed; the accused had prejudiced his job opportunities by returning from England in order to face a trial that did not take place; a witness formerly available was no longer available and there was no record of his evidence. This latter fact was the determining feature in the case. The situation in the instant case is, essentially, no different from what would arise if after quite a short delay before a trial an important witness had died. Section 22 of the Criminal Justice Act, 1984, makes some provision to deal with that instance if it is feared it will arise. No such fear existed here; it was a foreseeable but not to be expected development; it was a pure misfortune. As the accused is entitled to a fair trial, so also is the State. In my judgment, the circumstances are not such as to warrant declining to order the new trial that should, in my view, otherwise be held. In the circumstances, I would allow the appeal, discharge the conviction, and order a new retrial.

O’Flaherty J.
I agree with the Chief Justice in his recitation of the facts of these cases; the course that the trial has taken to date; his conclusions of law and the orders that he proposes.
I wish to add my observations on two aspects only, viz.
(1) Should a jury be given a special warning by a trial judge in regard to the need to look for corroboration in the case of a confession obtained while in police custody or while a person is subject to police interrogation?
(2) What is the role of the jury where the trial judge has admitted a statement as voluntary but where there are allegations by the defence of inducements or threats or the like?

As regards corroboration
Counsel for the appellants submit that the reasoning which informed the Court’s judgment in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 should be invoked so as to require that a trial judge should warn a jury of the dangers of acting on confession evidence which is not corroborated though, it is accepted, the jury should be entitled to convict without corroboration if they are convinced of the guilt of the accused.
The first thing to be said about this submission is that The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 emphatically does not lay down that a jury should be asked to look for corroboration in the case of an allegation of mistaken identity and that a warning should be given to a jury in regard to reaching a verdict of guilty in its absence.
Kingsmill Moore J., speaking for the Court, set out, in general terms, the warning that should be given where the verdict depends substantially on the correctness of an identification. He said at p. 39 of the report:
“We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.”
Having pointed out that the direction was not meant to be a stereotyped formula Kingsmill Moore J. went on to say that it did contain a minimum warning which should be given in any case which depends on visual identification. He continued at p. 40 of the report:
“No specific reference is made to ‘corroboration in a material particular implicating the accused’. An item of evidence falling within this formula may, according to its nature, have very little or very great probative value. This consideration is meant to be
covered by the words, ‘in the light of all the circumstances, and with due regard to all the other evidence in the case’, and it is for the judge to deal with the lesser or greater probative value of any item of corroborative evidence.”
It will be clear that far from the jury having to be warned to look for corroboration it is the judge who is to deal with this and put it into the reckoning when he gauges the extent of the warning that he should give the jury.
As far as the criminal law is concerned the only cases where a judge was required as a rule of practice – as opposed to a statutory requirement – to warn a jury of the dangers of acting on uncorroborated evidence were – (i) in the case of the sworn evidence of young children; (ii) in the case of accomplices: Attorney General V. Linehan [1929] I.R. 19 and (iii) in the case of sexual offences.
The warning requirement in the case of young children was based on the likelihood that they might be susceptible to the influence of others or might be ruled by their imaginations. (See now s. 28 of the Criminal Evidence Act, 1992, which was enacted since the argument in this case concluded). A warning in the case of an accomplice was required because he was by definition a discredited witness and one who, very often, had something to gain by offering to give evidence for the prosecution. The rationale for the warning that had been required in the case of sexual offences was not settled and different justifications were put forward for it. Some theories, the historical background of which are explored to some extent in the judgment of Sullivan C.J. in The People (Attorney General) v. Williams [1940] I.R. 195, at pp. 200-201, came to be regarded as offensive to women, such as that women were moved to make complaints by pique or jealousy or because they were ruled by their imaginations. In any event, the law is now governed by s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990, which lays down that it is no longer necessary for the judge to give a warning to a jury in the case of sexual offences where the evidence of the complainant is uncorroborated but he is entitled, in his discretion, to give such a warning and he does not have to use any particular form of words in doing so.
In the result, therefore, it will be clear that the only extant example of a warning requirement based on judicial practice is in the case of discredited witnesses. We are asked, in effect, to assign police testimony in the case of confession evidence to the same category as that of an accomplice. That is the legal landscape in which this plant is to take root. I am satisfied that such a judicial development is not justified.
If there is an attack on confession evidence in the course of a trial I would prefer to leave to the good sense of the trial judge in each individual case to weigh the extent of the warning that he thinks should be given to the jury about acting on the evidence if the matter is uncorroborated. He will of necessity have told the jury about the presumption of innocence and the burden of proof that rests on the prosecution in criminal trials. I think if we attempt to express how the warning should be given in some formula at this stage it would probably give rise to serious problems in its implementation. The administration of justice would not be helped. If we introduce this warning requirement what rationale are we to give it? The only one that springs to mind is that police evidence is to be equated as intrinsically unreliable in the same way as that of accomplices.
Like other members of the Court, I do not shut my mind to the fact that there have been expressions of public unease about certain cases where confessions were obtained. The Oireachtas, too, has become alive to the rights of the suspect in this regard and to the need to afford him proper protections and, thus, it is pertinent to have regard to the protections set out in the Criminal Justice Act, 1984, in regard to persons in custody. I think we are, at this stage of our development, fairly and squarely in an area of policy which should properly be left to the Oireachtas. The question of having electronic recording of police interviews is provided for in s. 27 of the Act of 1984. Regulations have not yet been brought in to implement the provisions of the section. It is not for me to reason why this has not been done but the introduction of audio or audio/visual recordings is as likely to be of benefit to the gardaí as it is to the accused. It would, I am convinced, be a much better way to ensure that a just verdict is reached than the introduction of a corroboration warning requirement.
The trial judge’s function in the “trial within a trial” is to decide whether the statement has been made voluntarily, i.e. without force or threat of force or inducement. The truth of the confession is not directly relevant at that stage. Once the confession is admitted then the question for the jury to consider is whether it is true. Voluntariness is but a test of admissibility. It is not a test of the truth of the statement.
No doubt, the accused is entitled to traverse again all the ground that was traversed before the trial judge. He may bring the jury to the conclusion, accordingly, that the confession statement was fabricated or
was not true or as the case may be. In a sense, the trial judge’s function is but a preliminary step enabling the jury to enter on what is their function which is to weigh the evidence.
In my judgment nothing should be done to take away from the regime which was so definitively established in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460.

Egan J.
I agree with the judgment which has been delivered by McCarthy J.

Paul Anthony Kane v Governor of Mountjoy Prison

1987 No. 583

1988 No. 19 SS

High Court

Supreme Court

21 December 1987

11 May 1988

[1988] I.L.R.M. 724
(Egan J)

(Finlay CJ, Henchy, Griffin, Hederman and McCarthy JJ)

EGAN J delivered his judgment on 21 December 1987 saying: A complaint having been made on behalf of the applicant that he was being unlawfully detained, I held an enquiry into the matter pursuant to Article 40.4 of the Constitution.

The applicant was originally arrested under s. 30 of the Offences Against the State Act 1939, on suspicion of Garda Dermot Doran that he was a member of an unlawful organisation, namely the I.R.A. The arrest was at 1.12 p.m. on 23 November 1987. On that date a nationwide search had been commenced by the Garda Síochána in co-operation with members of the Defence Forces. The search was for unlawful supplies of arms and ammunition which might have entered the State.

In the course of this search a party of Gardai entered the home of one Thomas Joseph Cox near Moyne, Co. Longford where certain I.R.A. manuals, a sum of money and two sleeping bags had been found. The Gardai had information to the effect that two unknown men had left the home of Mr Cox and were probably in the locality. The search continued and two men, the applicant and a man subsequently known to be named Dermot Finnucane, were found hiding in the attic of a nearby house owned by one Anthony Kiernan. On the following morning (during the course of the applicant’s detention under s. 30 aforesaid) firearms and ammunition were actually found concealed in a burrow covered over with earth close to the home of Mr Cox.

Chief Superintendent Albert I. McDonagh signed an extension order pursuant to the 1939 Act and the applicant’s detention at Granard Station continued until 1.12 p.m. on 25 November 1987. Shortly before his release i.e. at about 1 p.m. Chief Superintendent McDonagh swore that he became aware for the first time that an application for a provisional warrant pursuant to the Extradition Act would be requested. He was so informed by Deputy Commissioner McMahon (who had already backed a full warrant relating to Dermot Finnucane). He then made arrangements for Superintendent Kelly to await a call from the R.U.C. in this regard. He was aware that the applicant had been actually released before he spoke to Superintendent Kelly. He stated that he was not aware at the time that the applicant might be an escapee from the Maze Prison.

Chief Superintendent McDonagh also swore that prior to the applicant’s release and prior to the time he became aware that there would be a request fromt the R.U.C. for a provisional warrant, he had given directions to Inspector Cullinane to have surveillance put on the applicant. He stated that he was not really concerned with what might have happened in Northern Ireland. He was primarily concerned with the applicant’s association with the firearms on Mr Cox’s property and he wanted to find evidence that would connect him with that crime.

Superintendent Kelly of Mullingar (already referred to) gave evidence that at 1.45 p.m. on 25 November 1987 (shortly after the applicant’s release from s. 30 detention) he received a phone call from Inspector Gaume of the R.U.C. requesting him to apply for a provisional warrant and he was given all relevant information. He was told that a full warrant had been obtained in the North from Mr Justice Basil Kelly and that it would be sent on. He typed out an information based on what he had been told by Inspector Gaume. He thought that he would have to apply for the provisional warrant in Cavan but it was not possible to get a District Justice in Cavan until later in the day after District Justice McArdle had received a request to come to Cavan that evening. The information was not sworn until 8 p.m. that evening and a provisional warrant was obtained from District Justice McArdle. By that time the applicant was in custody in relation to other alleged offences for which he had been arrested.

Superintendent Kelly had a discussion with the State Solicitor, Mr Thornton, and he decided that he would not execute the provisional warrant immediately. He would wait until the applicant was charged with the other alleged offences before the District Justice that evening and only execute the provisional warrants in the event of the applicant being released on bail in relation to the said charges. The applicant was, in fact, remanded in custody until the following day, 26 November 1987, on which date he was granted bail and released. Superintendent Kelly then executed the provisional warrant. The applicant was brought back into court and remanded in custody. Full warrants arrived from the North at a later stage and he is now in custody on foot of these. The warrants allege that having been convicted of an offence he escaped from lawful custody of the Maze Prison on 25 September 1983 and that having with others been indicted with the murder on the same date of one James Fenis, he failed to appear for his trial on 28 April 1987.

We will now return to his release from s. 30 detention at 1.12 p.m. on 25 November 1987. There is no doubt whatsoever but that he was subjected to intense surveillance from members of the Garda Síochána from that moment in time up to the time of his arrest later that evening. Soldiers were even involved for some of the period. On his release from Granard he decided to go to Cavan to see a solicitor. Members of the media were outside Granard station. A B.B.C. crew gave him a lift in a motor car to Cavan where he went to the office of Cormac D. Dunne & Co., Solicitors, arriving at approximately 2.25 p.m. The car in which he was travelling was followed by a Garda car. He was followed on foot by Gardai when he walked from the car to Mr Dunne’s office.

The applicant spent a few hours inside the solicitor’s office but there were also members of the Gardai inside. Inspector Lambe of Cavan gave evidence that he went to the solicitor’s office in the mid-afternoon and that two detective Gardai were there. He had with him a Mr Hall, a prison officer from Northern Ireland. Mr Ryan, a solicitor in the firm of Cormac Dunne & Co., told the inspector that he would have a word with Kane. Mr Ryan then beckoned them into his office and Mr Hall identified the applicant as the Paul Anthony Kane who had been in the Maze Prison in 1986. Mr Hall was not in a position to identify the applicant as a person who had escaped from the Maze Prison in 1983 as he himself had only been attached to the Maze since 1986.

A while later a Mr Brian McKeown (thought by the Gardai to be a leading member of the Provisional I.R.A.) entered the solicitor’s office and left there with the applicant who got into his car which was followed to Mr McKeown’s house in Swellen (about a mile outside Cavan). Shortly afterwards, the applicant and Mr McKeown walked into Cavan and back again. It is beyond dispute that they were followed all the way by members of the Gardai. Some of these were on foot and they walked in the main behind the applicant and Mr McKeown but occasionally one or maybe more walked in front of them and at all stages they were very close to the applicant and Mr McKeown. There were about six guards involved in the walk and there were also a couple of Garda patrol cars following. The surveillance was undoubtedly most thorough and the guards involved were from different places, Athlone, Mullingar, Cavan and Granard.

When the applicant and Mr McKeown arrived back at the house at Swellen, it was surrounded by several guards. Most of them were at the front of the house but one or two were down a laneway at the side of the house. A short while later the applicant emerged from the house with Mr McKeown, Mr Gerry Adams, MP, Mr Morrison and a Mr McAughey. They got into a car and Mr McAughey was the driver. The time was approximately 6.15 p.m. After a certain amount of confusion with which I do not consider it necessary to deal with, the car set off in the direction of Cavan with Garda cars following. An effort was made by the driver of another car to impede the pursuit of the Garda cars by zig-zagging across the road but eventually Garda Myles succeeded in passing it. The vehicles travelled past Swellen Bridge. Eventually the car in which the applicant was a passenger slowed down at a place called Lath. It had been trying to pass a large container but there was another car coming towards it from the opposite direction. A Garda car then passed out the applicant’s car and braked in front of it.

The applicant then ran through a hedge on the left of the road intending to get away from it all but, to his surprise, he fell into a ditch on the other side of the hedge which was dirty, slushy and deep to the extent that it was a few feet higher than his own height. Garda Myles jumped out and followed through the hedge and he also, to his surprise, ended up in the ditch. There is a confliction what happened then. Garda Myles alleged that he was assaulted by the applicant. The applicant on the other hand swore that Garda Myles put his hands around the applicant’s throat which had the effect of almost choking him. He also swore that Garda Myles punched him three times on the face. I accept Garda Myles’ version of what happened in the ditch. There is not a word in the applicant’s affidavit to suggest choking or punching by Garda Myles and these matters were not put to Garda Myles when he was being cross-examined by experienced counsel.

Garda Myles then informed the applicant that he was being arrested for causing a breach of the peace by assaulting him and the applicant was pulled and pushed out of the ditch and into a Garda car. He was then brought to Cavan station and was charged before District Justice McArdle with the assault and also with a charge of committing malicious damage to a watch owned by a Garda Leyden to the amount of £100. (I would have little or no doubt that if the latter charge even came to be tried it would be dismissed as the evidence in support of it appears quite inconclusive). District Justice McArdle had, as already stated, previously granted a provisional warrant under the Extradition Act but this had not yet been executed. It was however, executed the following day and the applicant was re-arrested after leaving court upon being admitted to bail in respect of the charges hereinbefore mentioned.

I see nothing sinister or illegal in the decision which was made to charge the applicant with the alleged assault offence in priority to executing the provisional warrant under the Extradition Act. A contrary view would require to be taken if the assault charge had no reality and had been so to speak ‘trumped up’ for the purpose of detaining the applicant.

It seems to me, therefore, that the real issue in this case is to consider the nature of what was done by the Garda authorities from the time the applicant was released from s. 30 detention at 1.12 p.m. on 25 November 1987 up to the time of his original arrest on the assault charge at about 6.20 p.m. on the same evening. If I am correct in this we are dealing effectively with a period of little more than five hours. The authorities call it ‘surveillance’. The applicant is reluctant to accept the concept of legal surveillance and argues that there is no right to require a person to submit to surveillance. He contends that if there is any degree of intrusion to be tolerated it must be kept to a minimum of what is required. It is contended that the intrusion in the present case was grossly excessive.

The applicant also seeks to draw a parallel between this case and that of State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 but the court had held in that case that there had been an unlawful detention for the purpose of securing the presence and availability of the applicant in that case for extradition proceedings. It is submitted in the present case that there was a similar plan by the authorities. Detention and surveillance are not, of course, the same thing. I think on the evidence judging in particular from the number of people involved who came from different places that there may well have been a plan to keep the applicant under surveillance so that they would know where he was when the provisional warrant could be obtained. I regret that the authorities were not more candid about the matter if my view is correct and I am also satisfied that there were inaccuracies in the evidence but these matters do not determine the issue to be tried.

There is little in the way of helpful authority on the extent of the right to surveillance. It would clearly be objectionable if there was no basis whatever to justify it. In the present case there was such justification which consisted of either:

(a) the expectation of an extradition warrant whether provisional or not, or

(b) the anxiety to follow the applicant to see if he would lead them to clues in respect of the arms which had been found and with which they associated him.

The latter alternative appears to me to be less likely than the former as, if it were the true purpose, one would surely have expected it to be more covert and discreet whereas, in fact, the surveillance was open and extremely obvious.

Despite the foregoing, I am satisfied that the applicant’s freedom of movement was at no stage curtailed while he was on foot. He was free to walk in any direction and nothing happened beyond the fact that he was watched. Even in respect of the journey by car prior to his jumping through the hedge, this car was eventually blocked from proceeding further. I am satisfied, however, that the purpose of this was not to arrest or detain the applicant but was directed to restraining the driver of the car from driving dangerously as had been the case.

The authorities had many opportunities during the relevant period to take the applicant into detention but they did not do so and I am quite satisfied that he would not have been arrested if he had emerged from the ditch without assaulting Garda Myles.

The application for release is accordingly refused.

SUPREME COURT
FINLAY CJ

(Henchy and Griffin JJ concurring) delivered his judgment on 11 May 1988 saying: This is an appeal by the applicant against the decision of Egan J in the High Court, delivered on 21 December 1987, after an enquiry had been had pursuant to Article 40.4 of the Constitution, determining that the applicant was being detained in accordance with law.

On the morning of 23 November 1987, a countrywide search was carried out by the Garda Síochána with the assistance of the Army, for unlawful arms, believed to be hidden by subversive elements and believed to represent a major threat to the security of the State. In the course of that search in County Longford, a house near Moyne was found to contain certain I.R.A. manuals and two sleeping-bags, and it was reported that immediately before the Gardai had arrived to search the house, two men who were unidentified were seen to leave it. In an immediately adjoining house upon a search being carried out, the appellant together with another man were observed hiding in an attic, and upon being seen by Gardai said ‘don’t shoot, we are unarmed’, came down from the attic and were both arrested pursuant to s. 30 of the Offences Against the State Act. The appellant was arrested on suspicion of being a member of the I.R.A. Upon being brought to Granard Garda Station after that arrest, the appellant for a period of approximately 24 hours refused to give his name or address or to answer any questions. At his request he was visited by a solicitor of his choice and subsequent to that gave his name, but refused to give any more detailed address than Belfast. On the morning of 24 November, firearms and ammunition were found concealed in a burrow, covered over with earth close to the house in which the I.R.A. manuals and sleeping-bags had been found, and therefore, close also to the house in which the appellant was found. The detention of the appellant pursuant to s. 30 of the Offences Against the State Act was duly extended by a certificate of the Chief Superintendent, and the appellant was eventually permitted to leave Granard Garda Station shortly after 1 p.m. on 25 November 1987.

The applicant was walking down the street of Granard, when he was spoken to by a lady representing the B.B.C., who was with a television crew. He apparently took a lift with her and her companions in the car which they were driving and was, at his request, driven to Cavan, a distance of about 30 miles. On their way, their car with all others was stopped at a Garda checkpoint, which was part of the overall search operation and upon the boot being examined and found to contain nothing of any harm was permitted to go on. The car in which the appellant travelled from Granard to Cavan was followed by two Garda cars.

On arrival at Cavan, at his own request he was dropped in the main street, and having spoken to a passerby, apparently enquiring for the office of some solicitor, he was directed to the office of a Mr Dunne. Mr Dunne’s offices were one of several different professional offices situated in a single building with common stairs and landings.

Upon the appellant entering that office, members of the Garda Síochána followed him, and remained on the stairs or landing, while other members of the Gardai remained on the street outside the front door.

The appellant remained for some time in the office where he was joined by a Mr McKeown who was a friend of his and who lived a short distance outside Cavan town at a place known as Swellen.

Later the appellant and Mr McKeown left the office together and drove in Mr McKeown’s car to his house in Swellen.

They were followed on that journey by two Garda cars, which upon arrival at the house were parked outside, and the guards who had been driving in them then surrounded the house, some members standing on the road in front of it and others down a lane way at the side of it, where they could have a view of the rear. None of the guards entered the house or sought to enter the house.

After a short time Mr McKeown and the appellant came out and walked together into Cavan town through some of the streets in the town and then back to Mr McKeown’s house. On this journey, the appellant was followed closely, by upwards of four to five Gardai on foot, and by at least two, and possibly three Garda cars. A number of photographs of this journey were taken by a freelance press photographer, and were available in evidence.

Having returned to Mr McKeown’s house the appellant and Mr McKeown were joined by Mr Adams and Mr Morrison of Sinn Fein, and by certain other people identified by Garda evidence as members or supporters of the Provisional I.R.A.

After a short time a group of four or five persons including the appellant left the house and started walking down the road towards the town of Cavan. After some distance they entered a car which was parked at an angle on the road and set off towards Cavan in the car, rapidly reaching a very fast speed.

As they did so, a car being driven by a Mr Carlin stated by Gardai to be a member of the I.R.A. was reversed backwards and forwards across the road in an attempt to prevent any Garda car from following. He was partly successful in this attempt, but one car driven by Garda Myles managed to get by, by climbing along the ditch.

Garda Myles, who was on his own in his car, followed the car in which the appellant was travelling, but was himself soon overtaken by Mr Carlin, who kept between him and the car in which the appellant was travelling and kept moving from side to side of the road, so as to prevent him keeping closer to the car in which the appellant was travelling.

On the evidence of Garda Myles, which was accepted by the learned trial judge, the car in which the appellant was a passenger and the car of Mr Carlin were then driven for some miles through Cavan town and its outskirts at very high speeds in an entirely reckless fashion, including inter alia, conduct which caused a number of pedestrians to have to jump off the surface of the roadway to the side thereof in order to escape injury.

Garda Myles passed out Carlin’s car when it went out of control through over-speeding at a corner and then after some further distance succeeded in passing out the car carrying the appellant, and stopping it by slowing down in front of it.

His intention in so doing was accepted by the learned trial judge as being to arrest the driver of that car for dangerous driving and to restrain him from driving dangerously any further.

The appellant jumped out of the back seat of that car and dived over a hedge at the side of the road. Garda Myles, who stated that he believed his primary duty was to keep the appellant in view, and that he was aware that other Gardai were then arriving at the scene, and could then deal with the driver of the car, jumped over the fence after the appellant. Both were apparently very surprised to find a deep drain into which they fell. Garda Myles swore that the appellant then assaulted him by punching him in the chest on a number of occasions. The appellant swore that Garda Myles, unprovoked, caught him around the neck and punched him in the face. Garda Myles then arrested the appellant for causing a breach of the peace and for assaulting him, and he was brought to Cavan Garda Station.

He was subsequently charged with (a) causing a breach of the peace, (b) assaulting Garda Myles in the execution of his duty and (c) malicious damage to a watch, stated to be the property of a Garda Leyden.

He was brought before the District Court in Cavan that evening on these charges and was remanded in custody to the following morning. On the following morning he was remanded on bail and on that release, was immediately arrested on a provisional warrant, issued by the District Justice pursuant to the provisions of the Extradition Act 1965. That provisional warrant was apparently followed by a full extradition warrant pursuant to which he is now detained.

The evidence clearly establishes that from an early stage after his arrest various members of the Gardai suspected that the appellant might be a person wanted in Northern Ireland on allegations of having been involved in serious crimes, possibly including the murder of a prison officer in an escape from the Maze Prison.

By the time of his release from Granard Garda Station on 25 November or very shortly thereafter, the Gardai were aware that the R.U.C. were seeking to transmit a warrant for the arrest of the appellant to be backed and executed pursuant to the Extradition Act.

Judge’s Findings of Fact and Legal Conclusions
Material to the issue arising on this appeal, the learned trial judge found the following facts.

1. That accepting the evidence of Garda Myles in preference to that of the appellant as to what occurred in the ditch, the appellant had assaulted Garda Myles.

2. That the appellant’s freedom of movement was at no stage curtailed while he was on foot and that the car in which he was travelling was only stopped for the purpose of restraining the driver from driving dangerously.

3. That the appellant would not have been arrested if he had emerged from the ditch without assaulting Garda Myles. On these findings, the learned trial judge concluded that the surveillance of the appellant was justified either

(a) on the expectation of an extradition warrant, whether provisional or not, or

(b) on the anxiety to follow the appellant to see if he would lead the Gardai to clues in respect of the arms which had been found and with which they associated him.

 

The learned trial judge concluded that the more probable purpose of the surveillance was the extradition warrant, and criticised some of the Garda witnessess for asserting that the real purpose was that set out at (b) above.

Having regard to this finding that an assault on Garda Myles did take place and that the arrest was bona fide, the learned trial judge held that the principles laid down by him in State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 and affirmed on appeal in this Court did not apply.

The Submissions on Appeal
Counsel for the appellant accepted that having regard to the learned trial judge’s finding of fact concerning the assault in the ditch, he could no longer contend as he had done in the High Court that the arrest was a device or was ‘trumped up’, as had been the foundation for the decision in the Trimbole case.

His submissions accordingly were:

1. The appellant was never truly released from custody on his being let out of the Granard Garda Station because the extent and nature of the overt surveillance of him maintained from then until his arrest that evening was consistent only with a continued detention of him.

2. Even if that submission were to fail, it is asserted that at least from the time of the appellant entering the solicitor’s office in Cavan and a Garda surveillance being mounted on that office, he was unlawfully brought back into detention and that he was therefore, at the time of his arrest in unlawful custody, a fact which must vitiate the legality of that arrest.

3. It was asserted that the extent and nature of the surveillance placed on the appellant constituted an unlawful harassment of him, representing an offence against s. 7 of the Conspiracy and Protection of Property Act 1875. It was said that as well as being a crime, this conduct which was unjustified and accordingly unlawful, was an invasion of the plaintiff’s constitutional rights of privacy and complete freedom of movement, and that since it continued right up to the moment of arrest it vitiated the legality of that arrest.

In support of this submission it was contended that the authority of the Garda Síochána to exercise surveillance in expectation of the arrival of an extradition warrant was much more restricted than their authority to do so would be for the detection or investigation of crime.

Conclusions
With regard to these submissions, I have come to the following conclusions.

1. I am satisfied that the contention that the appellant continued in the detention of the Garda Síochána from the time he left Granard Garda Station until the time of his arrest for assault must fail. The essential feature of detention in this legal context is that the detainee is effectively prevented from going or being where he wants to go or be and instead is forced to remain or go where his jailer wishes him to remain or go. When the appellant left the Granard Garda station, the evidence clearly establishes that what he wanted to do was to go to Cavan. He was free to do so and he achieved his purpose. There is no evidence of any description which could lead to the conclusion that any member of the Garda Síochána for any reason wished that the appellant would go to Cavan.

The single incident accordingly, of his taking the lift from Granard to Cavan in the BCC car irrespective of how many members of the Garda Síochána were observing or following him on the making of that journey, makes it impossible to infer from the evidence that his detention had not by then ceased.

2. The position from the time of his arrival at the solicitor’s office in Cavan remains, in my view, essentially the same, although the extent and nature of their surveillance altered. He, apparently, having consulted the solicitor, wished to see his friend, Mr McKeown, and to go with him to his home at Swellen. This he achieved. It is difficult to conceive again on the evidence that members of the Garda Síochána had any particular reason to wish, or did wish that he should do that. He subsequently decided to walk in and out of Cavan, that he achieved, and eventually, with a number of associates, including members of Sinn Fein and persons believed by the Gardai to be members of, or supporters of the Provisional I.R.A., left Cavan in a car for a destination which is not known. Again it would be wholly unreal to infer from the evidence that this journey was at the wish of the Gardai. Having regard to the findings of fact, made by the learned trial judge, it appears to me to be an inescapable conclusion that had the car in which the appellant was travelling, been driven in a safe manner it would not have been prevented from going to whatever the chosen destination was. If a person desiring to make a secret journey is permitted to go where he wants to, but his route and destination are made known by observation, he is not in law being detained.

3. I accept the submission made on behalf of the appellant, that as far as privacy is concerned, overt surveillance may under certain circumstances be more onerous than covert surveillance. This is not always true, and indeed, one can conceive of circumstances in which the reverse would be true. I would be prepared to assume without deciding for the purpose of dealing with this submission that a right of privacy may exist in an individual, even while travelling in the public streets and roads.

I would agree with the view expressed by the learned trial judge, that if overt surveillance of the general type proved in this case were applied to an individual without a basis to justify it, it would be objectionable, and I would add, clearly unlawful. Overt surveillance including a number of Garda on foot, closely following a pedestrian, and a number of Garda cars, marked as well as unmarked, tailing a driver or passenger in a motor car would, it seems to me, require a specific justification arising from all of the circumstances of a particular case and the nature and importance of the particular police duty being discharged.

Such surveillance is capable of gravely affecting the peace of mind and public reputation of any individual and the courts could not, in my view, accept any general application of such a procedure by the police, but should require where it is put into operation and challenged, a specific adequate justification for it.

The issue raised by this submission therefore, in my view, involves a consideration of all the proven circumstances, background and facts of the case, as well as a consideration of the duty being discharged by the police and the nature of the surveillance which was proved to have occurred.

I am satisfied that there are no grounds for the distinction sought to be drawn between the duty of investigating or detecting crime and the duty of executing an extradition warrant. The State has a very clear interest in the expenditure and efficient discharge of the obligations reciprocally undertaken between it and other States for the apprehension of fugitive offenders. A member of the Garda Síochána aware of the intended issue and backing of an extradition warrant has a clear duty to take reasonable steps to ascertain, where it probably can be speedily executed, when it is obtained. The view expressed by the learned trial judge as to the more probable reason for the surveillance, which was applied to the appellant is supported by the evidence, but does not, in my view, affect the question of the justification for this surveillance.

In this case the appellant was originally arrested in circumstances which led to strong suspicion

(a) he was a member of the I.R.A.,
(b) he had been in hiding, and
(c) he was associated with arms found near-by.
He was furthermore arrested, in the course of a countrywide search for arms, believed by the authorities to represent a major danger to the security of the State. For almost a day after his arrest he refused to give his name or address, despite an obligation imposed by the Offences Against the State Act to do so. When released, as he was in Granard, he was most unlikely for long to be on his own in seeking, as he was likely to do, to return to hiding. On the other hand, the likelihood then was that he would receive support and assistance by a tightly knit and efficient organisation of persons, who sympathised with him. That likelihood was, in my view, borne out by the facts as they eventually occurred.

Covert surveillance or even overt surveillance by a very limited number of persons following him at a discreet distance was most unlikely to be successful in keeping the Gardai aware of his whereabouts.

Consideration of the detailed evidence with regard to the events, which occurred between the appellant and his companions finally leaving the house at Swellen and his jump over the ditch at Lath indicates that notwithstanding the presence of possibly as many as ten or eleven guards of experience, who had available for their use up to three cars, that the car in which the appellant was travelling, was for most of its journey observed only by Garda Myles, who was very nearly on more than one occasion prevented from keeping it in sight.

Having regard to these considerations and to the nature of the duty which the Garda Síochána were carrying out on this afternoon, the extent and nature of the surveillance allocated by them to the appellant, was in my view, justified. I would accordingly dismiss this appeal.

McCARTHY J

(Hederman J concurring): In my view, the freedom of movement given to the appellant was limited so as to restrict his freedom of choice. The issue comes down to the question whether or not the gardai, who may lawfully ‘stake-out’ a premises which they believe will be burgled, or who may lawfully and overtly or otherwise follow a suspect with a view to investigating or detecting crime may lawfully do the same in the reasonable expectation of the arrival of a valid extradition warrant. The issue narrows further if, as I do, one concludes that overt surveillance, which, by definition, does not impede the freedom of choice of movement, is a lawful invasion of privacy to whether or not the overt nature of the surveillance can be equally so justified. May the State authorities, in effect, say to the individual sought under an anticipated extradition warrant:

You may go where you please but by our following you you will be unable to hide or to meet with people who might hide you because we understand an extradition warrant is on the way.

In my view, ordinarily, they may not. The duty of investigating or detecting crime is not the same as providing for the execution of an extradition warrant. The end result is as different in its nature as the surveillance may be. The critical matter is that the combination of interference with privacy and the impairment of freedom of choice of movement would be to provide for a circumstance that may never happen. Here the situation was quite different. A facsimile of the warrant had already been presented for ‘backing’; it was intended that the original would be ‘backed’ and would be available for execution within a very short time. The procedure under the Act had not merely been set in motion; it was reaching finality. In the circumstances the Garda action, following on the events as set out in the judgment of the Chief Justice, was not excessive and, therefore, not unlawful.

I agree that the appeal be dismissed.

Lynch v. Minister for Justice, Equality and Law Reform & Ors

[2001] IEHC 241 (26 March 2001)

JUDGMENT delivered by Mr. Justice Herbert on the 26th day of March 2001

Mr. Kevin Lynch seeks Judicial Review by way of an Order of Mandamus directing the Minister for Justice, Equality and Law Reform, the Governor of Portlaoise Prison, and the Parole Board to grant his application for temporary release. He claims that the failure to grant him such temporary release is a denial of a fundamental right guaranteed to him by Article 34, Article 38(1) and Articles 40-44 of the Constitution of Ireland, 1937; by (he Universal Declaration of Human Rights, the European Convention on Human Rights and Fundamental Freedoms and by various other International Instruments. In my judgment a prisoner has no constitutional or inherent right to early release from prison or to temporary release. This is clear from the decision of Mr. Justice Murphy in the case of Ryan -v- The Governor of Limerick Prison {1988) I.R. 198 at 200; of Mr. Justice Johnson in Sherlock -v-The Governor of Mountjoy Prison (1991) 1 I.R. 451 and of the Supreme Court of the United States of America in Greenholtz -v- Nabraska Penal Inmates 442 U.S. 1, and Ohio Adult Parole Authority -v- Woodard 118 Supreme Court 1244. The provisions of the European Convention on Human Rights and Fundamental Freedoms and the other International Instruments of which the State is a signatory are not part of the domestic law of the State and are not justiciable in the Courts of the State, (see in re: O’Laighleis (1960) I.R. 93 and Application of Michael Woods (1970) I.R. 154).

After conviction the powers of comminution and of temporary release are vested in the Executive and are Administrative Matters in which the Courts have no function and in respect of which the relevant authorities have a wide discretion. This discretion was recognised by the European Court of Human Rights in the case of Boyle & Rice -v- The United Kingdom (1988) 10 EHRR 425.

Rule 3(1) of the Prisoners (Temporary Release) Rules, 1960, (Statutory Instrument 167 of 1960) provides:-

“The Governor or other officer in charge for the time being of a prison may subject to the directions of the Minister and subject to any exceptions which may be specified in the directions of the Minister release temporarily for a specified period a person serving a sentence of imprisonment in that prison. ”
Mr. Kevin Lynch was sentenced to a term of eight years imprisonment by the Dublin Circuit Criminal Court on the 7th of April 1997, such term to run from the 4th of April 1996, on charges of possession of firearms with intent, possession of ammunition and aggravated burglary. He is eligible by special industry and good conduct to earn remission of a portion of this sentence not exceeding one quarter of the whole sentence by reason of the provisions of Rule 38 of the Rules for the Government of Prisons, 1947. Should he earn this remission he will be due for release from prison on the 4th of April 2002.

The Applicant states that he applied to the Governor of Portlaoise Prison

(a) on the 29th of July 1999 for transfer to the Training Unit at Glengariff Parade. Dublin or to Wheatfield Prison;
(b) on the 9th of December 1999 for temporary release for a period of Christmas;
(c) on the 20th of January 2000 for temporary release on the grounds that his parents were ill and to assist him in a programme of social reintegration;
(d) on the 21st of January 2000 for transfer to the Training Unit and a program of temporary release.
He swears that he received no reply whatever to these applications. On the 21st of June 2000 the applicant wrote to the Minister for Justice, Equality and Law Reform seeking transfer to the Training Unit at Glengariff Parade, Dublin and a structured program of temporary short term and weekend releases in order to facilitate his reintegration into society.

By a letter dated the 19th of February, 2000 the applicant was advised by the Minister that the Minister was not prepared to authorise a transfer to the Training Unit for Mr. Lynch “at this stage of his sentence “, but advised that his case would be kept under review. By a letter dated the 13th of July, 2000 Mr. Frank McDermott of the Prisons Division of the Irish Prisons Service wrote to the Applicant as follows:-

“l am directed by the Minister for Justice, Equality and Law Refonn to refer to your recent correspondence requesting a transfer to the Training Unit and a temporary release programme.
You were informed through your solicitor in a letter dated 19th February, 2000 (copy attached) that your application for a transfer to the Training Unit had been refused. It is understood that you have been interviewed by a representative from that institution who was visiting Portlaoise for the purpose of interviewing another prisoner and that you were currently undergoing urinalysis testing. This should not be assumed to mean that a transfer has now been approved The position remains that the Minster is not prepared to authorise a transfer at this stage, however, your case will continue to be kept under review.

Your applications for temporary release have also been given full and careful consideration. In reaching his decision to refuse them the Minister took the following factors into account:

(a) The nature and seriousness of your offence,
(b) whether the granting of temporary release would constitute a threat to the community,
(c) length of time spent in custody,
(d) behaviour while in custody,
(e) the remainder of your sentence left to serve,
(f) whether there are any compelling compassionate grounds which merit special consideration.
When considering applications the Minister will also take into account whether an offender has engaged constructively with the relevant prison based therapeutic services. In addition consideration may be given whether the offender has done any work in relation to addressing the circumstances/nature of their offence participated in any rehabilitate programmes and, if so, what progress has been made.

The Minister has given careful consideration to your case including the points you have made in your correspondence. In particular the Minister has noted your educational achievements and your good behaviour. However, the Minister does not feel that temporary release is appropriate at this stage of your sentence.

You should also note that this Department has issued no guidelines in relation to the number of periods of temporary release that an offender can expect to receive in relation to the length of their sentence. The document which you refer to has been forwarded to this Department but it did not originate from here, in fact this document has no standing and does not form the basis for deciding on temporary release in relation to any prisoners or groups of prisoners.

With regard to your references to another prisoner who received a transfer to the Training Unit, I wish to inform you that each case is considered on its own individual merit and as a matter of policy the Department will not enter into discussions with a prisoner on comparisons with other prisoners. ”

The document in question was referred to by the Applicant in his letter to the Minister for Justice, Equality and Law Reform to which I have made reference and is described in the following terms at paragraph 12 of the Applicant’s grounding Affidavit; “I believe it is the guideline for the way ‘Politicals’ are treated here in Portlaoise Prison and the prison system. I say that if I am not afforded the same opportunities as other offenders without prejudice or discrimination the Minister and his Department are guilty of discrimination and contravening my personal, human and constitutional rights.”

Whatever its source this document has no statutory basis or any binding effect on the discretion given to the Minister or on the manner in which the Minister exercises that discretion.

There is no evidence that the authorities in this case are dealing with the applications of Kevin Lynch for transfer and temporary release on a category basis, such as was the case in Cornish’ v- The Minster for Justice, where Mr. Justice O’Neill (13/1/2000) held that such a practice was ultra vires the powers of the Minister under the provisions of s. 2 of the Criminal Justice Act, 1960.

In the case of McHueh -v- The Minister for Justice (1997) I.R. 245 the Supreme Court reiterated that the granting or withholding of temporary release was a matter exclusively within the discretion of the Minister and that the Court has no jurisdiction to intervene in the process. In that case, as in the present case the Applicant relied upon the fact that temporary release (in that case upon compassionate grounds to visit parents in poor health), had been granted to other prisoners but had been withheld from him. In these circumstances I refuse this application.

Sheehan v Reilly

[1993] ILRM 427
Fnaly CJ
This is an appeal brought by the applicant against an order of the High Court dated 25 March 1992, made by Denham J, which quashed an order of the first-named respondent made in the Limerick District Court on 2 January 1992, convicting the applicant of an offence under the Larceny Act 1916 and sentencing him to ten months’ imprisonment, consecutive to certain other sentences which he was already serving. The order in addition provided, pursuant to O. 84, r. 26(4) of the Rules of the Superior Courts, that the matter should be remitted to the District Court to be reconsidered.

The appeal against that order was brought by the applicant in person and, upon this Court having issued a recommendation that for the purpose of determining the issues which arose in it, he should be entitled under the Attorney’s Scheme to the services of solicitor and counsel, application was made to extend the appeal, even though the matter was late, so as to include an appeal against an order made by Carney J in the High Court on 5 February 1992, on an application by the applicant pursuant to Article 40 of the Constitution for an inquiry as to the legality of his detention, whereby the learned trial judge refused to make any order under the Article 40 application but instead gave liberty to the applicant to apply for certiorari of the order of 2 January 1992, by way of judicial review. It was pursuant to that order that the order made by Denham J on 25 March 1992 was made, and it was necessary, in the view of counsel, that both orders should be appealed against so as to allow the submissions which were appropriate to the case to be heard. This Court, accordingly, granted an extension of time for the hearing of an appeal against that order.

The facts on which the issues arising in these two appeals are based are by no means clear, but in so far, even at this stage, as they can be ascertained with certainty they would appear to be as follows. By order of the District Court for Limerick City, made on 15 November 1990 the appellant was convicted of an offence of committing unlawful and malicious damage and of an offence of entering as a trespasser a building with intent to steal, and was sentenced to a total of 16 months’ imprisonment being ten months in respect of the charge of malicious damage and six months consecutively in respect of the charge of entering as a trespasser with intent.

Against those convictions and sentences the appellant before this Court appealed to the Circuit Court, but on the matter coming on for hearing on 15 January 1991 in the Limerick Circuit Court he withdrew the appeal and an order was made affirming the orders made in the District Court.

A warrant dated 15 January 1991 was then issued, and as far as this Court was able to ascertain, the applicant was immediately lodged in prison pursuant to that warrant to commence service of two sentences totalling 16 months’ imprisonment.

The applicant was brought before the District Court in Limerick on 2 January 1992, charged with the offence of having on 9 December 1991 entered as a trespasser a building known as Staunton Lodge and stealing cash therein, contrary to the provisons of the Larceny Act, s. 23A as inserted. The applicant was convicted of that offence and was sentenced by the judge of the District Court who heard the charge to be imprisoned for the period of ten months, to date from the termination of the sentences imposed on him in respect of the previous charges of ten months for malicious damage and six months for burglary, which had been imposed by the District Court on 15 November 1990.

This sentence constituted, with the sentences already imposed, the imposition of consecutive sentences totalling 26 months. As such, it was in excess as found by Denham J in the hearing before her of the sentence which could be lawfully imposed by a judge of the District Court. In respect of that matter, there is no dispute before us on this appeal.

On 22 January 1992 the appellant filed an affidavit sworn by himself in the High Court, setting out at paragraph 1 his conviction, on 15 November 1990, by the Limerick District Court on the two charges of malicious damage and entering as a trespasser, and the imposition on him of a total term of 16 months in respect of those two charges. He exhibited the order of the Circuit Court affirming these District Court orders and noting the withdrawal of the appeal against them. That order constituted an immediate warrant of 15 January 1991 directing the Garda Síochána to execute against the appellant the orders for a total of 16 months’ imprisonment. He further stated as a fact that he had been convicted on 2 January 1991 and that a sentence of ten months to date from the termination of the sentences imposed in the charge of ten months for malicious damage and six months for burglary was imposed upon him. He asserted the invalidity of this last sentence by virtue of the fact that it exceeded the powers of the District Court and exhibited the order made by the District Court on 2 January 1992. He stated that he had not appealed that order and at paragraph 8 he made, as it were, a plea as follows:

I accordingly beg this Honourable Court for a conditional order of habeas corpus to quash the order dated 2 January 1992 and for an inquiry in accordance with the Constitution of Ireland, Article 40.4.2°.

He also sought legal assistance in accordance with the Attorney General’s Scheme.

This application came before Carney J on 5 February 1992, and he made the following orders.

1. He did not deem it necessary to require the attendance of the applicant.

2. He ordered ‘that in lieu of granting leave to the applicant to apply for an absolute order of habeas corpus that the applicant do have leave to apply for an order of certiorari by way of application for judicial review in respect of the order of conviction and sentence’ made on 2 January 1992. A number of consequential orders were then made with regard to the bringing forward of the motion to review seeking the order of certiorari. The grounds were the excess of the 24 months’ total cumulative imprisonment by the District Court.

The ruling made by Carney J reads as follows:

On 15 November 1991 the applicant was convicted of malicious damage and burglary and sentenced to ten months’ imprisonment and six months’ imprisonment, respectively, the sentences to run consecutively. The sentences were combined in the same warrant, so that there is an inseparable nexus between them.

On 2 January 1992 the applicant was convicted of a further offence and sentenced to ten months’ imprisonment to date from the termination of the previous sentences. As these are combined in the same warrant I cannot segregate them. The applicant will have leave to seek judicial review by way of certiorari on the ground that this latest sentence would appear to breach the limits imposed by s. 12 of the Criminal Justice Act 1984.

When the application to quash the order of 2 January 1992 came before Denham J on 25 March 1992 the respondents did not appear to oppose the application but the notice party, the Director of Public Prosecutions did appear and whilst not opposing the quashing of the order did seek a direction under O. 84. r. 26(4).

The order drawn by the High Court as a result of the proceedings before Denham J, in addition, directed that pursuant to O. 84, r. 26(4) of the Rules of the Superior Courts the matter be remitted to the District Court to be reconsidered. No other order was apparently made. We have been informed by counsel on behalf of the respondent on this appeal, however, that the applicant was on the date of the making of that order by Denham J, that is to say, on 25 March 1992, discharged from custody by the spoken order of the learned trial judge.

The grounds of appeal finally submitted to this Court on behalf of the appellant may thus be summarised. It is submitted that upon the application by the applicant contained in his affidavit of 22 January 1992 coming before the High Court on 5 February 1992 that the only apparent authority which the Governor of Limerick Prison had to detain the applicant in prison was the order which had been made on 2 January 1992 by the District Court in Limerick. But that order was, on the face of it, bad having regard to the recitals contained in it of the sentences of imprisonment to which it was stated to be consecutive and that in those circumstances the only order which should have been made at that time by the High Court was an order after the facts had been fully ascertained, directing the release of the applicant.

It is further contended that the apparent acceptance by the applicant of the order giving him liberty to seek an order of certiorari by way of judicial review could not estop him from at least obtaining at this stage a declaration that the order made on 5 January 1992 was in law incorrect.

With regard to the order made on 25 March 1992 by the High Court, so much, only, of that order as remits the matter pursuant to O. 84, r. 26(4) is challenged, and the challenge to that is that, having regard to all the facts and cirumstances of the case, that there being a discretion vested in the court as to whether or not to make an order remitting under that rule that the learned trial judge erred in reaching a conclusion that she should do so.

Counsel for the Director of Public Prosecutions depends on the decision of this Court in State (McDonagh) v Frawley [1978] IR 131 as indicating that the order made on 5 February 1992 was correct, and further asserts that where the illegality of the sentence imposed on the applicant consisted exclusively of the fact that it was outside the jurisdiction of the District Court that there is no bar to a further consideration and trial of the charge in respect of which that sentence was imposed and that there is no reason why the High Court judge should not have so exercised her discretion.

With regard to these submissions, I have come to the following conclusions. Although the application brought before the High Court on 5 February 1992 was stated, as I have indicated in one paragraph of the affidavit of the applicant as being ‘for a conditional order of habeas corpus to quash the order dated 2 January and for an inquiry in accordance with the Constitution of Ireland, Article 40.4.2°’, it should, in my view, have been regarded as an application for an inquiry as to the legality of the detention of the applicant pursuant to Article 40.4.2° of the Constitution. Such an application in its urgency and importance must necessarily transcend any procedural form of application for judicial review or otherwise. Applications which clearly, in fact, raise an issue as to the legality of the detention of a person must be treated as an application under Article 40, no matter how they are described.

Upon the making of such an application to a judge of the High Court, that judge has got a jurisdiction and a discretion, in my view, even prior to reaching a conclusion that a sufficient doubt as to the legality of the detention of the applicant has been raised to warrant calling upon the jailor or detainer of the applicant to show cause to make inquiries of a speedy and, if necessary, informal nature to try and ascertain the facts.

If such a course had been followed upon the making of this application, then the material facts which could and should have been ascertained by simple immediate request to the authorities of Limerick Prison and to the authorities of the District Court would have been as follows.

1. The date on which the applicant commenced to serve the sentences of ten months and six months, to run consecutively, imposed by the District Court on 15 November 1990.

2. Whether at the date of the affidavit the applicant was still serving the second of those sentences.

3. If the applicant was still serving the second of those sentences, his date of due release, having regard to the remission for good conduct, if any, which he had so far earned.

4. Whether at the date of the imposition of the sentence on 2 January 1992 the applicant was still serving the sentences imposed on him in November 1990.

It does not appear that any of these inquiries were made, and in the ruling made by Carney J in respect of this application it appears that through an unfortunate error he concluded, notwithstanding the averments contained in the affidavit, that the sentences of ten months and six months, respectively, imposed by the District Court, which were the sentences at the expiration of which the sentence imposed on 2 January 1992 of a further ten months was to commence, had been imposed as late as November 1991. It presumably was on that basis that he ordered that the application be treated as an application for judicial review and directed the serving of a motion to quash the conviction and sentence of 2 January 1992.

Had the information which I have indicated been obtained, then it is possible, depending, of course, on the results of the inquiries so made, that the applicant would as of the date of the application to the High Court on 5 February 1992 have been entitled to be released from custody, and even if he were not entitled to be released from custody, might, if the sentences imposed upon him of 15 November 1990 had by that time expired, at least have been entitled to a hearing not by way of judicial review, with the consequential procedural delays, but rather by way of a direct hearing upon an inquiry under Article 40 on notice to the respondents as to the validity of the order made on 2 January 1992, and as to the appropriate decision and order to be made in the event of that being found invalid.

In State (McDonagh) v Frawley O’Higgins CJ with whom the other members of the court agreed, in the course of his judgment dealing with the right guaranteed by the Constitution that a citizen may not be deprived of his liberty save in accordance with law, stated as follows, at p. 136:

The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded. For example, if the judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for life instead of penal servitude for life, as required by the statute, the resulting detention would be imposed technically without jurisdiction. But the prisoner would not be released under Article 40.4 for it could not be said that the detention was not ‘in accordance with the law’ in the sense indicated.

This expression of opinion is contained in a judgment dealing with a case where the ground asserted for the illegality of the detention of the applicant was that, although duly convicted and sentenced in a manner permissible by law, he was receiving inadequate medical treatment in prison. The precise example given of the obviously inadvertent substitution of imprisonment for life for penal servitude for life creates no conceivable injustice of any description to the applicant.

It must not, in my view, however, be read as a statement of the law which either can be relied upon to justify detention which clearly has not got a legal base, nor to restrict or diminish the immediacy of the right of release provided by Article 40.4.2° of the Constitution.

In the instant case, one of the matters deposed to in the affidavit filed on 22 January of 1992 by the applicant was to indicate that the attention of the judge of the District Court in sentencing him on 2 January 1992 to a period of ten months’ imprisonment consecutive to the terms of imprisonment which he was already serving, was directed to the periods in respect of which those previous sentences had been imposed and, indeed, this is confirmed by the form of the order made by the District Court on 2 January 1992. In these circumstances, the applicant would have been entitled, had he been on 5 February 1992 entitled to his liberty, save for the order of 2 January 1992 of the District Court, at least to an inquiry as to whether the excess of jurisdiction which that seems clearly to constitute, could have have been inadvertent in the full sense of the word.

Whatever might have been the result of what should have occurred, namely, an immediate inquiry concerning the issues which I have indicated, it seems clear that unless it was firmly established to the satisfaction of the High Court on 5 February 1992 that the applicant would, even if this sentence imposed on him on 2 January 1992 were set aside as invalid, be still lawfully in detention under sentences previously imposed by the time a full decision on the validity of the order of 2 January 1992 had been made, it was quite inappropriate to convert the application under Article 40 into a judicial review proceeding which foreseeably might cause delay.

I assume from the fact, as we have been informed by counsel, that the applicant was immediately released by Denham J on 25 March 1992, that he had by then, if not for some significant period before that date, completed his sentences lawfully imposed in November 1990.

These considerations leading to a general conclusion that the High Court was in error in the order which it made on 5 February 1992 are relevant to the further issue arising as to whether the High Court on 25 March 1992 should have made an order remitting the matter to the District Court. The provisions of O. 84, r. 26(4) of the Superior Court Rules are as follows:

Where the relief sought is an order of certiorari and the court is satisfied that there are grounds for quashing the decision to which the application relates, the court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court.

Neither this provision nor any rule similar to it was contained in the Rules of the Superior Courts of 1962. It must first clearly be stated that this rule which, on the face of it, gives to the court a discretion as to whether or not to remit a matter in which an order has been quashed for further consideration, cannot, having regard to the limitation of the powers vested in the rule-making authority pursuant to the Courts of Justice Acts be the grant of any new or different power that is not already vested in the court by virtue of statute or by virtue of inherent jurisdiction.

Accordingly, the question which has been raised as to the exercise by the High Court on 25 March 1992 of the discretion arising under this rule, must be determined in accordance with the general principles applicable to the retrial of a person in the circumstances which have arisen in this case, it not being possible to separate the order by way of sentence from the order by way of conviction — cf State (De Burca) v Ó hUadhaigh [1976] IR 85.

Having regard to the decision of this Court in the case of State (Tynan) v Keane [1968] IR 348, and in particular to the judgment of Walsh J in that case, where at p. 355, he cited with approval the case of Conlin v Patterson [1915] 2 IR 169, as being a direct authority on the point that a conviction quashed on certiorari on the ground that the sentence pronounced was in excess of the jurisdiction of the court pronouncing it, was therefore null and void ab initio, and that an accused might be put on trial again for the same charge, I am satisfied that there is not a bar to the remitting in this case of the charge in respect of which the invalid sentence of ten months was imposed on 2 January 1992 for further consideration by the District Court. I am, however, satisfied that other considerations and, in particular, considerations of fairness and due procedure make it inappropriate to direct a further consideration of this charge.

On the findings which I have made concerning the position of this applicant in the application he made under Article 40 of the Constitution, it appears probable that he was, as of 5 February 1992, entitled to assert with immediacy his right either to absolute release or, at least, to an inquiry, including an inquiry as to whether the excess of punishment imposed upon him which was unlawful, was inadvertent or not. In all these circumstances, and having regard to the fact that he was detained for a substantial period thereafter, and that instead of securing the rights to which he was entitled under Article 40 he instead, at a delayed time, succeeded in quashing an order which on its face appears to be invalid, that it would not be just or fair that he should again be charged with, possibly convicted of and punished for this offence. In those circumstances, I would allow the appeal against so much of the order of the High Court of 25 March 1992 as remitted this matter, pursuant to O. 84, r. 26(4) of the Superior Court Rules, to the District Court for further consideration.

 The State (Quinn) v. Ryan

Walsh J.; O’DalaighC.J. [1965] IR  110
Supreme Court.
i

O’DalaighC.J. :
4 Dec.

The judgment which I am about to read is the judgment of the majority of the Court, consisting of Mr. Justice Lavery, Mr. Justice Kingsmill Moore, Mr. Justice Walsh and myself, and it is the judgment of the Court in this matter.
The four persons now before the Court are here to show cause why they should not be held to be guilty of contempt of the Courts and punished accordingly.
Only one of these persons, Detective Inspector Matthew G. Ryan, of the Garda Siochana, was a party to the original proceedings in this matter. Inspector Ryan’s return to this Court’s order of habeas corpus was adjudged bad and insufficient. As a result of Inspector Ryan’s actions the prosecutor, Philip Anthony Quinn, was in fact deprived of his constitutional right to apply to the Courts to test the legality of the warrant for his arrest and deportation (the warrant may be so shortly described) and, as it has been now established, was unlawfully arrested and deported to England.
It first came to the notice of this Court in the proceedings in which the order granted on the 16th July, 1964, was made absolute that the other three persons now before the Court were associated in different ways with the prosecutor’s arrest and deportation: Detective Constable Johns and Police Constable Perry, both officers of the London Metropolitan Police, were the English policemen who took over custody of the prosecutor from Inspector Ryan, and, accompanied by him, brought the prosecutor out of the jurisdiction; and it appeared that Inspector Ryan, in carrying out the prosecutor’s arrest and assisting in his deportation, was in communication, either directly of indirectly, with the fourth person now before the Court, Deputy Commissioner William P. Quinn, of the Garda Siochana, who backed the warrant for execution.
All four have filed affidavits showing cause; and on request they were granted leave to file, and have filed, supplementary affidavits.
What is said in the affidavits is in effect this: the decision to take the prosecutor out of the jurisdiction with the dispatch which was employed was not designed to defeat the Courts. The English officers were unable to obtain suitable accommodation on the Dun Laoire-Holyhead boat, and in these circumstances they decided to travel via Northern Ireland on the Belfast-Heysham boat. One of the English officers also says that he disclosed to a barrister (whom he purports to identify as the counsel who appeared for the prosecutor) that it was the intention of the English police to re-arrest the prosecutor. What is not explained is why notice was not given to the prosecutor’s solicitor of the application to the President of the High Court to procure the discharge of the prosecutor by consenting to the making absolute of the original conditional order of habeas corpus. Nor, indeed, is any explanation furnished of a number of other features of the case viz., why the President was not informed that it was the intention to re-arrest the prosecutor on a fresh warrant immediately he left the Court; why it was necessary to have directed the prosecutor, who was in custody in the Bridewell, to pack his bag before going to the High Court and to be ready to leave at a moment’s notice; why it was necessary to have a police car standing ready in the vicinity of the Four Courts; why the formal receipt of the transfer of the custody of the prisoner was executed not at the Bridewell but at another Garda Barracks in the course of the journey northwards.
None of these features has been explained. They are not the marks of a police transaction carried out in the ordinary way; rather do they indicate a desire to have the prosecutor out of the jurisdiction before he or his legal advisers could move to question the legality of what was afoot.
The Court does not overlook that the prosecutor’s evidence is that on arrest he asked to see his solicitor and was told he could see one in London. But this is denied, both by Inspector Ryan and the English police officers. The President of the High Court, having heard Inspector Ryan’s evidence on this point, did not accept his denial. However, in the absence of the prosecutor, due to the action of Inspector Ryan and of the English officers, Johns and Perry, and having regard to the fact that the English officers were not before the High Court, the Court is not now in a satisfactory position to resolve this conflict of testimony.
The effect of the actions of the respondents here has been that the jurisdiction and authority conferred on the Courts by the Constitution has been interfered with in that the right of recourse to these Courts guaranteed to Philip Anthony Quinn was impaired and in the result defeated. To that extent the contempt, if there be contempt, has been completed. As was pointed out in my judgment, which was the judgment of the Court on this point, given in the habeas corpus matter on the 31st July, the Courts’ powers to deal with such a situation are as ample as the defence of the Constitution requires. This special contempt is one which the Courts themselves take notice of, and is a criminal contempt.
It has been urged that a contempt must be brought home to a person called upon to show cause with the same certainty as is required in the case of a criminal offence. The Court accepts this as a correct statement of the degree of certainty which is required, namely, that it should be established beyond reasonable doubt. It has also been urged that prior to the decision of this Court in this case it was a matter of bona fide belief that instant deportation was lawful by virtue of the provisions of the Petty Sessions (Ireland) Act, 1851. Moreover, regret has now been expressed by the Irish officers concerned, somewhat belatedly, to the Court for what was done.
The Court accepts it that the Petty Sessions (Ireland) Act purported to authorise instant deportation, but it cannot accept the view that in a State whose Constitution guarantees personal rights it is enough to look to statute only as the warrant for one’s actions.
The statute in question here is a statute of the former United Kingdom Parliament and all such statutes have been kept in force only in so far as they are not inconsistent with the Constitution. It is therefore no answer in law to call in aid such a statute and ignore the Constitution. Moreover, so far as reported cases go, the Court has not had its attention called to any instance where the Act was operated as it was in the case now before the Court. Nor was it so operated here on the occasion of the prosecutor’s first arrest.
The Court does not accept it that the prosecutor’s immediate removal to Northern Ireland was effected merely in compliance with the request of the British police. The action of both police groups immediately upon the re-arrest of the prosecutor bears all the marks of a determination to avoid any further “Court delays” by presenting the Courts with afait accompli. It is unncecessary to recall the submissions made here in the habeas corpus proceedings on behalf of Inspector Ryan, that the Courts were now powerless. This Court is satisfied beyond reasonable doubt that it was the intention of the members concerned of both the Irish and British police that the prosecutor should be removed from the jurisdiction at once to prevent all further “Court delays”and that nothing more should be heard of his whereabouts until he was thought to be beyond the reach of the Irish Courts. As this intention ripened rapidly into an accomplished fact the authority of the Courts was unlawfully interfered with, and the officers concerned had completed an act of contempt. A belief, or hope, on the part of the officers concerned that their acts would not bring them into conflict with the Courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty guaranteed by the Constitution.
However, the reliance upon the provisions of the Petty Sessions (Ireland) Act is undoubtedly a mitigating factor, and the Court while holding that the officers concerned were in contempt accepts their statements that they believed that what they did was authorised by law. It should nevertheless be made clear that the issue before the Court would have been precisely the same if the constitutionality of the Act had been upheld and the warrant pronounced valid.
The Irish police officers now concerned in this matter have had an opportunity of expressing regret for their conduct. The affidavits first filed offered no expression of regret. These Irish officers, employing a common formula, said they greatly regretted that a situation should have arisen in which this Court should have thought they might have had any intention of being disrespectful to the Courts or of impeding in any way their functioning. Whatever this may mean, it is not an expression of regret for violating the prosecutor’s constitutional rights, or of having impeded the functioning of the Courts.
In the supplementary affidavits which were later filed there is a recognition of the importance of the personal rights guaranteed under the Constitution, but it is regrettable that police officers should so grudgingly concede constitutional rights once these rights were clearly enunciated by this Court.
However, the Court is satisfied that the Irish officers now have a full appreciation of the seriousness of what happened and sincerely regret their actions.
The Court has given full consideration to the question of the penalties it should impose in their case. In view of the expressions of regret which have now been conveyed to the Court and in the knowledge that there cannot be a recurrence of the conduct in question the Court now sees its way to forego the imposition of penalty in their case.
The English police officers in their affidavits and through their counsel accept full responsibility for everything done following the re-arrest of the prosecutor on the 15th July. These affidavits do not disclose any appreciation or even knowledge on the part of these officers of the constitutional guarantees of personal liberty which operate in this State. It seems an extraordinary state of affairs that English police officers sent to another country to execute a warrant of arrest should be so uninformed of the rights of the person to be arrested as to find themselves unwittingly in collision with the authority of the Courts of that country. Notwithstanding that this deficiency was made good by the service on them of the judgments of this Court in the habeas corpus proceedings before they swore and filed their affidavits, these affidavits speak of “doing their duty” and contain no expression of regret. In this Court their counsel maintained that no regret would be expressed unless and until they were found to have been in contempt. They have now been so found. If regret is now to be expressed the Court in considering the question of penalties must consider what weight (if any) is to be given to such expressions of regret.
There is one other matter which the Court cannot permit to pass without comment.
It is unnecessary to repeat here the story of the manner in which the enquiries of the applicant’s solicitor were received at the Bridewell Garda Station, at the Dublin Metropolitan Garda Headquarters and at Garda Headquarters at Phoenix Park. At no stage in these proceedings was the Court furnished with any explanation of the Garda conduct in this regard. It is conduct which merits unqualified condemnation. Deputy Commissioner Quinn and Inspector Ryan have dissociated themselves from it and have disclaimed all knowledge of it, and they do not attempt to justify it. The Court accepts this, but draws attention to the matter in the hope that suitable action will be taken by the appropriate authorities and that whatever is necessary will be done to ensure that there can never be a repetition of such conduct. It is quite intolerable that the legal advisers of a person in custody should be obstructed or misled in their efforts to ascertain the whereabouts of their client.
Mr. G. A. Clarke then tendered to the Court apologies on behalf of the British police officers.

O’DalaighC.J. :
The respondents, Detective Constable Johns and Police Constable Perry, have been found guilty of contempt of the Courts.
In the absence of an unqualified apology the Court would have found it necessary to impose an exemplary penalty upon them in vindication of the Constitution.
Such an apology has now been made to the Court, and on this account the respondents, Johns and Perry, are discharged without penalty

HAUGH J. :
The arrest and deportation of Philip Anthony Quinn on the 15th July, 1963, in circumstances now well known, resulted in extensive hearings before the High Court and this Court.
An unsuccessful application for an order of habeas corpuswas made to Mr. Justice Teevan on that morning. On the following day this Court made an order in the matter of an absolute order of habeas corpus and directed service on Mr. Commissioner Costigan, Detective Inspector Ryan, and Sergeant Bell of the Bridewell Garda Station. Cause was shown by these three officers, and the matter then came before the President of the High Court later in that month. It is both obvious and understandable that the President was gravely concerned and disturbed by the events that had occurred, before, during, and after his Court had sat, on that Monday morning. In a prepared statement he said he wished to have information on a number of matters, one of which was as follows (I quote):”On Monday, 15th July, when counsel for the Attorney General in the President’s Court consented to have the conditional order granted on the 7th July made absolute, was the Attorney General aware (a)actually, or (b) constructively through counsel for the respondents or otherwise, that a new English warrant for the arrest of the prosecutor had been endorsed for execution by Deputy Commissioner Quinn, or that it was the intention of certain members of the Garda Siochana to re-arrest the prosecutor on his release?”
Counsel appearing on behalf of the Attorney General later stated that the Attorney General believed he should not have been asked such question, but he was prepared in the circumstances set out by counsel to answer as to his own actual knowledge; I quote from counsel’s remarks:”He instructs me to state that when the matter was before the President of the High Court on the morning of the 15th July, he was not aware that a second warrant had been issued, or endorsed for execution, or that it was the intention of any member of An Garda Siochana to re-arrest the prisoner on his release.” As regards his constructive knowledge, his counsel stated:”As to counsel, and the staff of the Chief State Solicitor’s Office, they acted as legal advisers to the members of An Garda Siochana concerned as well as for the Attorney General, and matters might well have come to their knowledge in that capacity of which the Attorney General would be ignorant. Whether or not such is the position in the present case the Attorney General submits should not be considered or discussed in this Court, and in so far as the persons concerned were acting for him, he insists on his right to claim privilege in respect of any communications made to them.” Such was the position, as regards the Attorney General’s actual personal knowledge and the knowledge (if any) of Mr. Thomas Donnelly, junior counsel, and his instructing solicitor when the matter came before the High Court.
The President further directed that Commissioner Costigan, Inspector Ryan and Sergeant Bell should attend for cross-examination on their affidavits at the adjourned hearing. fixed for the 23rd July.
The Court sat on that date and, because of the seriousness of the whole matter, by direction of the President the Court consisted of three Judgesthe President, Mr. Justice Davitt, Mr. Justice McLoughlin and Mr. Justice Teevan. It sat on the 23rd, 24th, 25th and 29th July, and duly reserved its decision. The Long Vacation intervened and three written judgments were delivered on the 18th November following. All of the Judges allowed the cause shown and directed that the prosecutor, Philip Anthony Quinn, should pay all costs.
Appeal was taken against that order, which, as regardshabeas corpus only, was heard on the 22nd, 23rd, 24th, 25th and 26th June of this year. As this Court was of opinion that the record disclosed prima facie evidence of contempt of the Courts, by the four persons now before it, it formulated a charge and directed their attendance. They were allowed up to the 5th October, 1964, to file affidavits to show cause.
All four have filed such affidavits and this Court sat on the 2nd November and subsequent dates to hear argument advanced by counsel only for these parties.
A person accused of acting in contempt of the Courts faces a serious charge of a criminal nature, deserving of heavy punishment on conviction. In my view all the legal principles that attend criminal trials exist in an inquiry investigating charges of contempt, a matter I have endeavoured to keep in mind, as the Court is the accuser, and is a Court of first instance in the contempt matter, and from its order there is no appeal.
The case against all four, and each of them, must be proved beyond all reasonable doubtthat is, I must be satisfied that guilt has been established, on the basis that all the evidence is consistent only with guilt and is inconsistent with innocence. The evidence before us consists of a transcript of what was said by Commissioner Costigan and Inspector Ryan to the High Court on the 23rd July, their affidavits and many other affidavits sworn at varying intervals, including one from the prosecutor, sworn at Brixton Prison, London.
This Court has not had the opportunity of observing the demeanour of these persons and is without the benefit of cross-examination.
If such lack is in fact a disadvantage, such disadvantage should not weigh against the four now accused.
The evidence as presented raises at least one serious conflict of fact. The prosecutor has sworn that at the time of his arrest and when he had been handcuffed to Constable Johns he said to Inspector Ryan:”I wish to see my solicitor,” and Constable Johns then said:”You can see a solicitor when you get to London.” This conversation has been denied on oath by the three police officers who were then within earshot. I must take the evidence as I find it, and not seeing or hearing the four concerned, both on examination and under cross-examination, I am quite unable to resolve this conflict of testimony, and as it is a very relevant and important matter, it is one that should be proved beyond all reasonable doubt if it is to be used against Inspector Ryan and Constables Johns and Perry. If evidence in a criminal matter can equally be resolved in a favourable or unfavourable way to an accused person it is usual for a judge to tell a jury that, if in doubt, the one that is more favourable should outweigh the other. In this matter I can come to no conclusion and leave the matter undecided in my mind.
To fulfil the requirements of the criminal law, as I view them, I keep in mind the nature of the elements necessary to support a charge of acting in contempt of the Courts. The words used in the order of this Court made on the 31st July last clearly inform the four persons charged of what they were being accused. Each one of them was told:”. . . by reason of the active role you took in the planning and execution of the police action taken with regard to the above-named prosecutor on the 15th July, 1963, with the general purpose of depriving him of a reasonable opportunity of exercising his constitutional right of applying to the Courts to question the validity of the warrant under which he was arrested.”
To me it seems, at least, arguable, that if a person acts so as to deprive another of a particular constitutional right, that person must have a knowledge and appreciation of the existence of such right and that such right is paramount to the right to arrest and remove under what is believed to be a good warrant.
To that degree mens rea must be proved. I would like to have established beyond doubt an intention or general purpose on the part of the police concerned to deprive the prosecutor of his known constitutional righta right which they knew, or ought to have known, existed and was one paramount or superior to the rights of any police officer to arrest and immediately deport the prosecutor under an English warrant believed to be valid.
In July, 1963, was there room for the view that it was lawful to arrest and immediately remove from the jurisdiction a man properly named and wanted on an English warrant believed to be good? In my view there was room for a bona fide belief that such could be done. In the main the police officers concerned have sworn that they so believed. In fact, no judgment on the particular issue was ever pronounced until July of this year. In the course of his judgment (the other members of the Court assenting) the Chief Justice stated:”In my opinion the Attorney General’s . . . submission is well founded. The Petty Sessions (Ireland) Act, 1851, does purport to authorise removal from the jurisdictioninstanter without any opportunity, reasonable or otherwise, to invoke the Courts.” It might with reason be urged that this judgment should not now have a retrospective effect.
In short, in my view, in July, 1963, there was room for a wrong, but bona fide belief, on the part of the police and those (if any) advising them, that such action was at least within the letter of the law if not within its spirit.
As regards the events that happened before and after the hearing before Mr. Justice Davitt on the 15th July, 1963, it now transpires that Deputy Commissioner Quinn sought advice from the Chief State Solicitor late on Sunday, the 14th July, after he had known of the second warrant on that afternoon. He wished to know whether the new warrant was in order and he was advised that this warrant was in order. As regards what was done by the instructing solicitor from the Chief State Solicitor’s Office, and by counsel whom he instructed before the President of the High Court on the Monday, this much now seems to emerge: the control of what should be said and done in that Court lay exclusively on counsel and on his instructing solicitor, subject, however, to the extent of the actual knowledge of counsel and the solicitor. I know nothing of the nature and extent of such knowledge (I have already referred to the Attorney General’s statement on this matter) but I do know and believe that Mr. Quinn on the previous night disclosed the existence of the second warrant to the Chief State Solicitor and sought advice as to its effectiveness.
In my view Inspector Ryan and the two London police officers (if, and only if, all the facts were known to counsel) were in no position to control the procedure that was to be followed before the President on that morning. In these circumstances the construction most favourable to the four accused is, in my opinion, the one that should be drawn, and I so do as regards what happened in Court on that Monday morning.
Another matter, to which I have given careful and anxious consideration, and which affects me considerably is as follows: this whole matter was litigated at great length before three Judges of the High Court, all lawyers of long experience. The hearing lasted many days. Judgment was reserved for many months and three judgments were delivered on the 18th November. That the issue of “contempt” was discussed in some form before the High Court appears from the judgment of Mr. Justice McLoughlin alone. I will quote from it later.
The President, who, one might well feel, was the Judge who did feel personally affronted by what took place in his Court on Monday, the 15th July, made no use of the words “contempt of the Courts” throughout his whole judgment.
Mr. Justice McLoughlin did say:”Mr. O Siochain did ask that the Commissioner, Detective Inspector Ryan, Sergeant Bell and Deputy Commissioner Quinn should be attached for contempt of Court. The only contempt alleged against anyone was the failure by Commissioner Costigan to take any steps to secure the return of Quinn from his present custody in England”; and later, “For myself, I cannot see how there was any contempt of Court on the part of anybody
concerned in the execution of the warrant or any disobedience to any order of the Court.”
It seems clear that the nature of the contempt in the mind of this Judge was completely different to the nature of the contempt attributed to the four men now accused.
Mr. Justice Teevan did not deal with any form of contempt in his judgment.
I have posed to myself this question: if the High Court after a lengthy hearing failed, as far as I can see it, to detect any contempt of the nature now alleged against the four men now charged, in as much as they did not advert to it in some practical way during, or at the conclusion of, the hearing, can I, in a criminal charge of this serious nature, now say that it has been proved beyond reasonable doubt that these accused were possessed of a common guilty mind?
For myself, I cannot, and would accordingly hold that the cause shown should be allowed in all four cases.

Lynch v Minister for Justice

[2010] IESC 34
JUDGMENT of the Court delivered by Murray C.J. on the 14th day of May 2010
These two cases were heard together as they raise the same issues concerning a challenge to the constitutionality of s. 2 of the Criminal Justice Act 1990 and a claim made pursuant to s. 5(1) of the European Convention on Human Rights Act 2003 for a declaration that 2 section is incompatible with the provisions of the Convention.

Section 2 of the Act of 1990 provides as follows:-

“2.- A person convicted of treason or murder shall be sentenced to imprisonment for life.”
Each of the appellants stand convicted for the crime of murder and have been duly sentenced to life imprisonment pursuant to the aforesaid section.
Section 4 of the Criminal Justice Act 1964 provides:

“4.- (1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury, to some person, whether the person actually killed or not.”
On 2nd December 2002 Peter Whelan was convicted for the crime of murder at the Central Criminal Court and sentenced to life imprisonment pursuant to s. 2 of the Act of 1990.
On 10th February 1997 Paul Lynch was convicted for the crime of murder at the Central Criminal Court and also sentenced to life imprisonment for that offence.

The detention of the second appellant, Paul Lynch, was considered by the Parole Board in 2004, which has an advisory role only, and in July 2004 the first named defendant, the Minister, determined that the appellant should not be released from prison and that any further application in respect of his sentence would not be considered for a further period of three years.

As appears from s. 2 of the Act of 1990 a life sentence for the crime of murder is a mandatory sentence, leaving the courts no discretion but to impose it once a person is convicted of that crime. It is the mandatory nature of the sentence in all cases of murder that has given rise to the proceedings brought by each of the appellants.

History of punishment for murder in the State

For the purpose of addressing the issues raised in this case the Court considers it relevant to place the punishment imposed by the courts for the crime of murder in its legal and historical context.

At the foundation of the State in 1922 the crimes of murder, treason and piracy carried a mandatory death penalty. The duty of the courts to impose the mandatory death sentence upon any individual convicted of murder arose from sections 1 and 2 of the Offences Against The Person Act 1861.

That remained the position in law until the passing of the Criminal Justice Act 1964 which restricted the imposition of the death penalty to certain offences of murder which were categorized as capital murder in s. (1)(b) of the Act. Capital murder included, for example, murder of a member of An Garda Siochana or a prison officer acting in the course of his or her duty. Section (2) of the Act of 1964 provided for a mandatory life imprisonment for any person convicted of the crime of murder other than those designated as capitol murder in s. (1) of the Act. The 1861 Act was amended accordingly. It should be noted however that after the last such execution in 1956 the sentence of death was commuted to one of life imprisonment in every case.

In 1990 provision was made by law for the abolition of the death penalty for murder, and other offences. Section 1 of the Criminal Justice Act 1990 provided that no person should suffer death for any offence. As stated at the outset s. 2 of that Act makes provision for a mandatory life sentence for the offence of murder. Section 4 of the same Act requires the Court, when passing sentence in relation to certain types of murder, referred to in s. 3 of that Act, to specify that the minimum period of imprisonment to be served in such cases will not be less than 40 years. Again the types of murder referred to in the latter category include the murder of a member of the Garda Siochana or prison officer in the course of his or her duty.

The Constitution, although it did not provide for the imposition of the death penalty, implicitly recognized, until its amendment in 2001, that the death penalty could be imposed in certain cases. Article 13.6 of the Constitution vested in the President the right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction and also provided that such powers could also be conferred by law on other authorities “except in capital cases”. Article 40.5 made special provision for the deferring of a death sentence where the Court had made an order pursuant to Article 40 for the production of the body of a person who was in detention and under sentence of death.

The Twenty First Amendment of the Constitution Act 2001 provided for the removal of all references to the death penalty in the Constitution and inserted in the Constitution Article 15.5.2 which now provides:

“The Oireachtas shall not enact any law providing for the imposition of the death penalty”.
The position now is that, after the total abolition and prohibition of the imposition of the death penalty the minimum sentence which a court may impose on a person convicted of the crime of murder is life imprisonment.
Temporary Release

Every person serving a sentence for the commission of a crime, including those serving a life sentence, may be granted temporary release, subject to conditions. Section 2 of the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003 confers on the Minister the discretionary power to grant such temporary release and provides as follows:

“2.(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person—
(a) for the purpose of—

(i) assessing the person’s ability to reintegrate into society upon such release,

(ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration, or

(iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence,

(b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on—

(i) grounds of health, or

(ii) other humanitarian grounds,

(c) where, in the opinion of the Minister, it is necessary or expedient in order to—

(i) ensure the good government of the prison concerned, or

(ii) maintain good order in, and humane and just management of, the prison concerned, or

(d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable of reintegrating into society.

(2) The Minister shall, before giving a direction under this section, have regard to—

(a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates.

(b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto,

(c) the period of the sentence of imprisonment served by the person,

(d) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison,

(e) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates,

(f) the risk of the person failing to return to prison upon the expiration of any period of temporary release,

(g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release to which rules under this section, made before the coming into operation of the Criminal Justice (Temporary Release of Prisoners) Act 2003, applied,

(h) any report of, or recommendation made by—

(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned,

(ii) the Garda Síochána,

(iii) a probation and welfare officer, or

(iv) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned.

(i) the risk of the person committing an offence during any period of temporary release,

(j) the risk of the person failing to comply with any conditions attaching to his temporary release, and

(k) the likelihood that any period of temporary release might accelerate the person’s reintegration into society or improve his prospects of obtaining employment.

(3) The Minister shall not give a direction under this section in respect of a person—

(a) if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so do,

………… .”

Summary of the arguments of the parties on the constitutional issue
The Appellants

For the purpose of placing the imposition of a life sentence in its factual context it was pointed out in the course of their submissions that once a jury had returned a verdict of guilty of murder the trial judge had no further judicial discretion in the matter and was required to impose the life sentence as laid down by the Oireachtas in the Act of 1990. It was contended however that in practice a life sentence imposed is never, or hardly ever, a true life sentence since few, if any, who are sentenced to life for murder are kept in prison for the rest of their lives. It was claimed that the first named respondent, the Minister, has a statutory discretion to release prisoners at any stage after sentence and that he would, de facto, determine the length of a life sentence. In support of that view counsel adopted the observations of Mustill L.J., in the United Kingdom case of R. v. Secretary of State for the Home Department, Ex Parte Doody [1994] 1 AC 531 concerning the imposition of a life sentence for murder Mustill L.J., observed:

“Although it is a very grave occasion it is a formality in this sense, the task of the judge is entirely mechanical. Once a verdict of guilty is returned the outcome is pre-ordained. No matter what the opinion of the judge on the moral quality of the Act, no matter what circumstances there may be of mitigation or aggravation there is only one course for him to take, namely, to pass a sentence of life imprisonment.
…

The sentence of life imprisonment is also unique in that the words which the judge is required to pronounce do not mean what they say. Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or intended effect of a sentence of life imprisonment, as a judge faced with a hard case will take pains to explain to the offender before sentence is passed. Although everyone knows what the words do not mean, nobody knows what they do mean, since the duration of the prisoner’s detention depends on a series of recommendations too, and the executive decisions by, the Home Secretary, some made at an early stage and others much later, none of which can be accurately forecast at the time when the offender is sent to prison.”

Reliance is also placed on a statement made by the author in O’Malley on Sentencing Law and Practice (Thomson Round Hall, 2006, p. 244): “The judge imposes a life sentence; the government decides when, if ever, the offender is to be released. The upshot of this arrangement is that the length of time a person actually serves is determined by the executive as opposed to the judiciary. The same is true of most prison sentences except in the case of a determinate sentence an upper limit will have been judicially determined following conviction.”
Imposition of a Proportionate Sentence

In the foregoing context the first substantive ground upon which it is sought to impugn the constitutionality of s. 2 of the Act of 1990 is that it offends against the principle or doctrine of proportionality.

It was submitted on behalf of the parties that the imposition of the mandatory life sentence offended against the constitutional doctrine or principle of proportionality, as it was put, since the trial judge had no discretion to impose or tailor a sentence which reflected the particular circumstances in which the offence may have been committed. Even for the offence of murder there may be attendant mitigating factors relating to the circumstances in which it was committed including the circumstances of the victim and the murderer or on the other hand there may be particularly aggravating factors in those circumstances giving the offence a more heinous character than others. It was submitted that the constitutional principle of proportionality required that a judge in every criminal case must be permitted sufficient discretion to impose a sentence that was proportionate the gravity of the offence having regard to all relevant circumstances and that the non discretionary sentence of life imprisonment offended against that principle.

In support of that proposition counsel referred in particular to statements of Flood J., in The People (D.P.P. v. W.C.) [1994] 1 I.L.R.M 321 when giving a ruling on the sentence to be imposed on a person convicted of rape in the following terms:

“In my view the selection of the particular punishment to be imposed on an individual offender is subject to the constitutional principle of proportionality. By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced. It is not open to a judge in a criminal case when imposing sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy or to otherwise pre-determine that issue.” (1994 1 I.L.R.M 321 at 325.
Counsel also relied on a passage from the judgment of Walsh J., in The People (Attorney General) v. O’Driscoll [1971] 1 Frewen 351 at 359.
“It is therefore the duty of the courts to pass what are appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”
The importance of sentences being proportionate to the gravity of the offence in question as well as to the circumstances of the person sentenced has been repeatedly emphasised in the case-law of the Court of Criminal Appeal for example by Denham J., in her judgment in D.P.P. v. M [1994] 3 I.R. 306 and Hardiman J., in his judgment in D.P.P. v. Kelly [2005] 2 IR 321. In the first of those two cases Denham J., stated:
“However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court […]. Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that mitigating factors fall to be considered.”
In the second case, D.P.P. v. Kelly, Hardiman J., stated:
“[U]nder our present sentencing regime, sentences must be proportionate not only to the crime but to the individual offender.
This principle in itself is well established and is derived at least partly from the Constitution. In The State (Heaney) v. Donoghue [1976] I.R 325 Henchy J., said that the Constitution guarantees that a citizen should not be deprived of his liberty by a trial conducted so as to shut out “a sentence appropriate to his degree of guilt and his relevant personal circumstances.”

It is clear from well established case-law, it was submitted, that the principle that a sentence should be appropriate and proportionate to all the circumstances of the offence has been applied to all offences except murder.
It was also submitted that the learned High Court judge was incorrect in treating the offence of murder as falling into a category of its own because it involved the taking of a life, a point she emphasised by the protection of the right to life in the Constitution. Such an approach is inconsistent with the fact that the principles referred to apply to the crime of manslaughter which, it was submitted, can encompass a range of crimes which could be infinitely more brutal and terrible on the facts than murder. It is true that manslaughters can vary greatly in the degree of blameworthiness or moral culpability but so can murder. In the circumstances, it was submitted, there was no justifiable reason why sentencing for the offence of murder should be excluded from the application of the doctrine of proportionality.

The doctrine of proportionality which should apply is governed by the statement of Costello J., in Heaney v. Ireland [1994] 3. I.R. 593where he held that national provisions overriding a constitutionally protected right must comply with that principle, and in particular they must:

“a. be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
b. impair the right as little as possible, and

c. be such that their effects on rights are proportional to the objective.”

Accordingly it was concluded that s. 2 of the Act of 1990 is incompatible with the principles of justice enshrined in the Constitution insofar as it requires a trial judge to impose a life sentence in all murder cases without the possibility of exercising any discretion related to all the circumstances of the case.
Interference with Judicial Function

It was submitted that the Constitution recognises and provides for the separate exercise of executive powers by the government and judicial powers by the courts so that judges may exercise their judicial functions independently in accordance with the Constitution. Punishment is a matter for the courts as opposed to the executive branch of government (Deaton v. The Attorney General and the Revenue Commissioners [1963] I.R 170). In submitting that the mandatory life sentence imposed by a judge is in effect a vague and uncertain one counsel relied on the fact that convicted murderers never have to actually serve a life sentence and when sentenced neither the judge nor the convicted person knows how long he will in fact serve before he is eventually released. It is the Minister that systematically defines the actual length a prisoner will spend in prison by eventually setting a release day pursuant to s. 2 of the Act of 1960. In this respect the Court should look at the substance of what occurs and not merely the form.

Accordingly, it is asserted, in substance the sentence or tariff is the length of time a prisoner will remain in jail. The Minister determines how long the prisoner will remain in jail therefore the Minister’s decision is analogous to a sentencing exercise.

This involves the Minister in selecting the punishment which a person convicted of murder must undergo and offends against the statement of O’Dalaigh C.J., in Deaton v. Attorney General where he held:

“…it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers — and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one — could have intended to place in the hands of the executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power. …… In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive as Parliament purported to do in s. 186 of the Customs Consolidation Act, 1876.”
Counsel did acknowledge however that in the Deaton case O’Dalaigh C.J., also stated:
“There is a clear distinction between the description of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case … If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain.”
There are two basic points made on behalf of the appellants in relation to the Deaton case. Firstly the imposition of a mandatory life sentence is not in substance a fixed sentence since the Minister has the ultimate say on how long the prisoner will actually remain in prison. Therefore the principle referred to in Deaton has no application to such an indeterminate sentence. The appellants do not seek to impugn the power of the Minister to grant temporary release or remission of sentences but in the particular circumstances of a life sentence he is determining the punishment to be imposed on the convicted person. Section 2 of the Act of 1990 in requiring a court to impose a mandatory life sentence in such circumstances constitutes an unconstitutional breach of the separation of powers.
It was also submitted as an alternative or parallel argument that s. 2 should be interpreted as permitting a judge imposing a life sentence under that section to make a recommendation as to the minimum period which the prisoner should be required to serve before the Minister should consider remission or conditional release. This would permit a judicial “input” into the sentencing and respond adequately to the constitutional principle of proportionality. Neither, it was submitted, would such a recommendation be an interference with the Minister’s executive power to remit or conditionally release. The judicial input would be in the nature of a recommendation and the Minister would be free in the exercise of his discretion to grant temporary release at a time earlier than that recommended by the trial judge. Such an approach would give the section an interpretation consistent with the Constitution. It would also reconcile the principles laid down in Deaton which spoke of the separation of powers between the executive and the judiciary. Otherwise s. 2 must be treated as being unconstitutional since the doctrine of proportionality must trump the power of the Oireachtas to exclude the judiciary from judicial decision making.

State’s Arguments

In summary, the first ground relied upon the State for resisting the plaintiff’s claim was the principle of the separation of powers according to which it is for the Oireachtas in the first instance to determine the penalties which may be imposed by the courts for specified criminal offences. The Oireachtas may, when enacting legislation, specify, in relation to any particular offence, a range of penalties or sentences which a court may, in its discretion, impose on a convicted person or may specify a fixed penalty or sentence to be imposed generally on all persons convicted of a particular offence. The State relied, inter alia, on Deaton v. Attorney General [1963] 1 I.R. 170. Murder, it was submitted, is undoubtedly the most serious criminal offence and the legislation requiring a mandatory life sentence for the crime of murder underlies and reflects society’s abhorrence for the intentional taking of life. The imposition of the mandatory life sentence for murder is clearly within the legislative powers of the Oireachtas which was entitled to take the view that there is no murder that warrants less than a punitive life sentence. The contention of the appellants that there should be no distinction between murder and manslaughter is incorrect because it overlooks the fact that murder punishes “intentional” killing. It is the combination of culpability and life taking that makes murder particularly grave. Accordingly the learned trial judge’s conclusion that the imposition of a life sentence for the crime of murder was a proportionate or rational exercise of the legislative power of the Oireachtas should be upheld.

On that basis, the fact that a trial court was not left with a discretion as to the sentence to be imposed for the crime of murder cannot be said to be an intrusion by the Oireachtas in the judicial sphere or compromising any principle of proportionality which may apply to sentencing. Moreover there is no authority to support the proposition that a trial judge must be given a discretion in every sentencing case.

With regard to the power of the Minister to grant temporary release or commute the sentence of a convicted criminal the question of whether to exercise such discretionary power is, under the principles of constitutional and administrative law, a decision of the executive which is administrative in nature, subject to the usual principles of judicial review; in this respect the State referred, inter alia, to the State (Murphy) v. Kielt (cited below) and Murray v. Ireland and the Attorney General (cited below. Further, it was submitted there is no right to temporary release; it is in the nature of a privilege or concession granted by the executive: Ryan v. Governor of Limerick Prison [1988] I.R. 198. In exercising its discretion to temporarily release a prisoner the Minister is not making a decision determining the sentence or punishment to be served by the prisoner but deciding whether, by way of commutation of sentence for one of the purposes referred to in the Act of 1960 (as amended), he should accord to him or her the privilege of temporary release. It was submitted that a consideration of the mandatory life sentence and the provisions for temporary release show that in substance (a) the whole of the life sentence is penal or punitive in nature and remains in place as an enforceable order of the trial court for the convicted person’s lifetime notwithstanding any temporary release granted to him or her as a discretion: (b) preventative detention plays no role in the sentence, either at the time of sentence or during its continuation at any time. The Irish courts have consistently maintained that there is no role for preventative detention in sentencing law – Carmody [1998] I.L.R.M. 370; Bambrick [1996] I.R. 26; (c) the Minister’s role in evaluating a prisoner’s situation for the purpose of considering whether to grant temporary release is one purely related to whether or not he should exercise his discretionary power, pursuant to the separation of powers, to commute or remit the sentence; (c) a person has no legal right to be released from a life sentence upon the existence of any particular set of circumstances.

Accordingly it was submitted the exercise of a discretionary power of temporary release cannot be considered as constituting an interference with the judicial functions of the courts or directly or indirectly imposing some form of preventative detention on a person serving a life sentence.

Since a punitive sentence of life imprisonment is a whole life sentence without any element of preventative detention it cannot be compared to the sentencing regime which exists in the United Kingdom and which was scrutinised in the case-law of the European Court of Human Rights as relied upon by the appellants. It was submitted that the learned High Court judge was correct in her reasoning on the issue of constitutionality and that the appeal should be dismissed.

Decision on the Constitutional Issue

Since the foundation of the State the crime of murder has been considered to be one of exceptional gravity in the criminal calendar. The reasons are clear and self evident. The sanctity of human life and its protection is fundamental to the rule of law in any society and for most of the last century for the crime of murder, the intentional unlawful killing of another, the law mandated the ultimate sanction, the death penalty. This was the mandatory sentence in every such case, even if from the mid 1950s onwards it was invariably pardoned and commuted to a life sentence.

With the abolition of the death sentence and its constitutional prohibition the law still mandates the most punitive permissible sentence, life imprisonment, in every case in which a person is convicted of murder. It does not require any elaboration to note that this is an approach that is common in democratic societies across the world. However, the Court is concerned with the position under the law of this country and, as outlined earlier in this judgment, the provisions of the Constitution, prior to its amendment, acknowledged that the imposition of the death penalty was consistent with the Constitution. Accordingly it was certainly consistent with the duty of the State to defend and vindicate the rights of citizens including the right to life.

In committing the crime of murder the perpetrator deprives the victim, finally and irrevocably, of that most fundamental of rights, the right ‘to be’ and at the same time extinguishes the enjoyment of all other rights inherent in that person as a human being. By its very nature it has been regarded as the ultimate crime against society as a whole. It is also a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim.

At various points in the arguments advanced on behalf of the appellants it was sought to establish some equivalence or parallel between the crime of murder and other crimes which involve the unlawful killing of the victim, in particular manslaughter. Again it was sought on behalf of the appellant to suggest that the sentencing principles applying to the punishment of other such crimes as manslaughter, should also apply to murder and in particular the principle that the sentence imposed should be one which is judicially determined in each case so that the sentence is proportionate to all the circumstances of the particular case.

The Court is satisfied that this approach by the appellant is unfounded and misconceived.

While it is undoubtedly the case that the crime of murder may be committed in a myriad of circumstances and the degree of moral blameworthiness will vary accordingly, such as where it is committed in particular heinous circumstances, nonetheless the crime itself, by its very nature, has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person, whatever the circumstances. Again, that is the reason why the most serious of deterrents is provided by law.

It is in the foregoing context that the assertion by the appellants that the Oireachtas, in providing that a mandatory life sentence be imposed in respect of the offence of murder has usurped the powers of the judiciary to an extent incompatible with the Constitution falls to be considered.

In Deaton v. Attorney General [1963] I.R 170 this Court considered the question of the separation of powers and the respective functions of the legislature and the judiciary in relation to sentencing. That was a case in which the defendant had been convicted of two customs offences contrary, inter alia, to s. 186 of the Customs Consolidation Act 1876. The penalty provision of s. 186 was that any person who was guilty of an offence under the section “shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or £100, at the election of the Commissioners of Customs.” (Which had then become the Revenue Commissioners). Because the provision permitted the Revenue Commissioners to choose which one of two penalties to impose in an individual case the provision was set aside as wrongfully interfering with the judicial function conferred by the Constitution on the courts.

In delivering the judgment of the Court O’Dalaigh C.J., stated:

“There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. It is here that the logic of the Defendants’ argument breaks down. The Legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where the Legislature has prescribed a range of penalties the individual citizen who has committed the offence is safeguarded from the Executive’s displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the separation of powers –and in this the Constitution of Saorstát Eireann and the Constitution of Ireland are at one-could have intended to place in the hands of the Executive the power to select the punishment be undergone by citizens. It would not be too strong to characterize such a system of government as one of arbitrary power… In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive as Parliament purported to do in s.186 of the Customs Consolidation Act, 1876.” (p.183)(emphasis added)
The Court is satisfied, as O’Dalaigh C.J., explained in that case, that the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called in question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified.
In this case however s. 2 of the Act of 1990 applies to the crime of murder. For the reasons already indicated that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the Court’s view, one for which the State is entitled to impose generally a punishment of the highest level which the law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and that the person so doing intended to kill or cause serious injury it is one which can therefore properly be differentiated from all other crimes including manslaughter.

The Court is of the view that the learned trial judge was correct when she concluded “…there can be nothing offensive in the Oireachtas promoting the respect for life by concluding that any murder even at the lowest end of the scale, is so abhorrent an offensive to society that it merits a mandatory life sentence …”.

Accordingly the Court concludes that s. 2 of the Act of 1990 in requiring the imposition of a mandatory life sentence for murder is not repugnant to the Constitution.

In the light of the foregoing conclusion it is difficult to discern any basis for the contention on behalf of the appellants that s. 2 of the Act of 1990 is unconstitutional because it allegedly deprives the trial judge of imposing a sentence which is in accord with, as the appellants have put it, the constitutional doctrine of proportionality. Since, as the Court has concluded, the stipulation of a mandatory sentence of life imprisonment in s. 2 of the Act of 1990 for the crime of murder is consistent with the Constitution it cannot be accepted that the Constitution, in some other fashion, requires that a trial judge should be able to give consideration to imposing a different sentence which he or she might consider more appropriate or proportionate to the particular circumstances of the case. Insofar as the appellants relied on the doctrine of proportionality as articulated by Costello J., in Heaney v. Ireland (cited above) and approved in various judgments of this Court, such reliance is, in the Court’s view, misconceived. Broadly speaking the specific doctrine of proportionality referred to by Costello J., in that case is a public law doctrine with specified criteria, according to which decisions or acts of the State, and in particular legislation, which encroach on the exercise of constitutional rights which citizens are otherwise entitled freely to enjoy, are scrutinised with regard to their compatibility with the Constitution or the law. When used in that context the doctrine of proportionality might be said to be a term of art.

On the other hand words such as proportionate and proportionality have their ordinary meaning. They may be, and are, terms which are descriptive of the manner in which a judicial discretion or function should, as a matter of principle, be exercised within particular proceedings. For example in civil proceedings it might be properly said that a trial judge, when awarding damages for personal injuries, should, inter alia, award damages which are proportionate to the gravity of the injury sustained by a plaintiff and its impact on him or her in all the circumstances of the case. One could just as readily say ‘appropriate’ to the gravity of the injury. But that is not an exercise in intruding on the constitutional right of an individual because it can only arise after it has been determined that the defendant has a civil liability to the plaintiff. Similarly, the question of sentencing a person to a term of imprisonment only arises after the person concerned has been convicted of a criminal offence. It is not a deprivation of liberty in some broad public interest but a deprivation of liberty because of the criminal culpability of the person to be sentenced. The exercise of a judicial discretion then is a consequence of that. That the doctrine of proportionality as stated in Heaney v. Ireland has no application to and indeed would be inapplicable to the exercise of imposing an appropriate or proportionate prison sentence in a criminal case is probably self evident but is in any event evident from the innumerable cases which make reference to the principle of proportionality in sentencing and refers to proportionality in its ordinary meaning. This includes the case-law on which the appellants have placed particular reliance. For example the appellants rely on the reference by Flood J., in D.P.P. v. W.C (cited above) to the “constitutional principle of proportionality”. But Flood J., went on to give it quite a different meaning than that in Heaney but which is consistent with the case-law of this Court and the Court of Criminal Appeal: “By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced.” The statement of Walsh J., also relied upon, in The People (Attorney General) v. O’Driscoll (cited above) contains the statement “It is therefore the duty of the Courts to pass what are appropriate sentences in each case having regard to the particular circumstances of the case…” There are many other judicial dicta, including those of Denham J., and Hardiman J., cited in the arguments of the appellants above from which it is apparent that when a court is obliged to impose a sentence which is proportionate, it means proportionate or appropriate to the circumstances of a case.

Of course the duty to impose the sentence which is proportionate or appropriate to the circumstances of the case only arises where a judge is exercising a judicial discretion as to the sentence to be imposed within the parameters laid down by law. It does not arise where a court is lawfully imposing a fixed penalty generally applicable to a particular offence as described in Deaton v. The Attorney General. Accordingly, although it may not have been strictly necessary to decide the point, the appellants are incorrect in contending that the doctrine of proportionality as specified in the Heaney case applies to the sentencing process.

As indicated earlier in this judgment it is contended on behalf of the appellants that the law as explained in the Deaton case has no application to the mandatory life sentence for murder because the sentence imposed is not in substance a determinate one. Since a person sentenced to life imprisonment is invariably released during his or her lifetime the length of the sentence and therefore the punishment is in substance decided by the Minister when he decides to bring to an end the period of imprisonment and release the prisoner under the temporary release provisions. Moreover, it is argued, the fact that the Minister, when deciding whether to grant temporary release, can take into account any risk which the prisoner may be thought to pose to public safety if released means that such a prisoner may be kept in prison as a preventative measure and his imprisonment ceases to be punitive. In that sense, it is claimed, there is in substance a period of punitive imprisonment and a subsequent period of preventative detention. Thus the length of sentence served by a prisoner will vary according to the circumstances in which the Minister exercises the power of temporary release in individual cases. Thus, when a person convicted of murder is sentenced to life imprisonment he does not know how long he will serve. Since the principles of the Deaton case do not apply s. 2 must be considered incompatible with the Constitution because it deprives the trial Court of the power to impose the sentence which is proportionate to the circumstances of the case. Alternatively s. 2 should be interpreted as permitting the trial judge to make a recommendation as to the length of time which the convicted person should serve which was proportionate to the circumstances of the case. Such a recommendation could be made so as to leave intact the Minister’s executive discretion to release in that he would not be bound by the recommendation and would retain his discretion to release on a date earlier or later than that recommended.

In the Court’s view these submissions are not well founded. First of all the life sentence imposed by a court is exclusively punitive. As Walsh J., pointed out in The People v. O’Callaghan [1966] I.R. 501 preventative justice “has no place in our legal system”.

In The People (The Director of Public Prosecutions) v. Jackson (Unreported, Court of Criminal Appeal, 26th April 1993) Hederman J., said: “It is submitted on behalf of the applicant that what in fact the Central Criminal Court did in this instance was that it imposed a preventative sentence on the accused, a sentence of life in order, as the trial judge said, to protect women from the applicant. The Court is satisfied that preventative detention is not known to our judicial system and that there is no form of imprisonment for preventative detention.” The fact that the Constitution has been amended with regard to the grounds for refusing bail for a person awaiting trial does not affect the principle that a convicted person may not be sentenced by a court or detained by an executive order for a preventative or non punitive purpose.

The appellants do not, as such, impugn the constitutionality of the powers to grant temporary release although the consequences of temporary release are challenged on the basis already indicated. The legitimacy of the discretionary power to grant temporary release as conferred on the Minister has, as counsel for the State pointed out, been acknowledged in successive judgments of this and other courts. In Murray v. Ireland [1991] I.L.R.M. 465 Finlay C.J., said:

“The length of time which a person sentenced to imprisonment for life spends in custody and as a necessary consequence the extent to which, if any, prior to final discharge, such a person obtains temporary release is a matter which under the constitutional doctrine of the separation of powers rests entirely with the executive: Director of Public Prosecutions v. Tiernan [1989] I.L.R.M. 149 …The exercise of these powers of the executive is of course subject to supervision by the courts which would intervene only if it can be established that they are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way.”
In a judgment of this Court delivered by Keane C.J., (nem diss) in O’Neill v. Governor of Castlerea Prison [2004] 1 IR 298 at 313 it was emphasised that: “The power to release itself, whether exercised on what might be called conventional grounds of a compassionate or humanitarian nature … is a quintessentially executive function and one which is discharged by it, in the words of Finlay C.J., speaking for this Court in Director of Public Prosecutions v. Tiernan [1989] I.L.R.M. 149 at 153 as: “a matter of policy pursued by the executive at given times and subject to variation at the discretion of the executive.””
Moreover, the exercise of that discretion to grant release by the Minister is not one to which any prisoner is entitled as of right. It is a privilege which may be withdrawn at any time by the Minister for good and sufficient reason. In that respect the appellants’ submissions are based on the misconception that the punitive element of the life sentence terminates on temporary release. Temporary release may and is granted subject to conditions including conditions to the effect that the released prisoner must keep the peace and observe the law. Apart from the fact that such a release may at the time it is granted be for a defined or limited period, even where the temporary release is open-ended, so to speak, the released prisoner remains liable to arrest and return to imprisonment to continue serving the life sentence should he be in breach of the conditions. In Dowling v. Minister for Justice, Equality and Law Reform Fennelly J., (nem diss) cited with approval Murphy J., in Ryan v. Governor of Limerick Prison and Anor [1988] I.R. 198 to the following effect: “The temporary release is a privilege or concession to which a person in custody has not a right and indeed it has never been argued so far as I am aware that he should be heard in relation to any consideration given to the exercise of such a concession in his favour. That being so, it seems to me that the only right of the applicant or any other person is to enjoy such temporary release as may be granted to him for whatever period is allowed and subject to such conditions as are attached to it.” Later in his judgment Fennelly J., confirmed: “It is, of course, true that temporary release decisions are entirely within the discretion of the Minister acting in the exercise of executive clemency on behalf of the State.” In the same case Murray J., as he then was, in a judgment with which other members of the Court also agreed, stated: “It follows that the temporary release of a prisoner before the sentence imposed by a court has expired is a privilege accorded to him at the discretion of the executive. The liberty which a prisoner enjoys while on temporary release, being a privilege, is clearly not on a par with the right to liberty enjoyed by an ordinary citizen …”

Later in the same judgment, in referring to a decision to terminate a prisoner’s temporary release he stated: “Such a decision is an administrative one for the purpose of withdrawing a discretionary privilege to a convicted prisoner whose sentence has not expired” (emphasis added).

In the Court’s view a life sentence imposed pursuant to s. 2 of the Act of 1990 is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention.

It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason.

It may be appropriate at this point to note that in the event of a prisoner’s privilege of temporary release being withdrawn by virtue of a breach of the conditions of that release the Minister, or any person acting on his behalf, is bound to observe fair procedures before withdrawing the privilege of temporary release as was held by this Court in The State (Murphy) v. Kielt [1984] 1.R. 459 and Dowling v. Minister for Justice, Equality & Law Reform. Should the Minister fail to observe such procedures or otherwise act in an unlawful, arbitrary or capricious manner in terminating the release for a breach of his conditions or otherwise, the prisoner may seek to have that decision set aside by way of judicial review before the courts.

In all these circumstances the Court does not consider that there is anything in the system of temporary release which affects the punitive nature or character of a life sentence imposed pursuant to s. 2. In particular a decision to grant discretionary temporary release does not constitute a termination let alone a determination of the sentence judicially imposed. Any release of a prisoner pursuant to the temporary release rules is, both in substance and form, the grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in accordance with the constitutional doctrine of the separation of powers (Finlay C.J. in Murray v. Ireland, cited above).

Finally, on this aspect of the matter the appellants have attached significance to the fact that in exercising his power to grant temporary release under s. 2 of the Act of 1960 the Minister must, inter alia, have regard to the gravity of the offence and the potential threat which the person’s release might pose to the safety of members of the public (including the victim of the offence for which he was imprisoned). That does not mean that the Minister is exercising a judicial function when making such a decision and in particular it does not mean that a decision not to release because of a risk of safety to the public converts the punitive sentence for murder into a preventative one. The Act specifies a range of grounds upon which a Minister may consider granting temporary release. They include preparing him for release upon the expiration of his sentence, the re-integration of a rehabilitated prisoner in society, release on grounds of health or other humanitarian grounds. It is a necessary incident to the exercise of a purely executive discretion that the decision-maker would be bound to have, before directing a person’s release on any of the possible grounds, have regard to a whole range of matters of which some twelve are specified in s. 2 subs. 2 of the Act of 1960. Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. It is not a decision on the sentence to be served. Refusing temporary release is a decision not to grant a privilege to which a prisoner has no right. Any such decision or policy on which it is based must serve the purpose or objects of the provision of the Act of 1960 only. It cannot be seen in any sense as converting a subsisting punitive sentence into some form of preventative detention.

The appellants did suggest that s. 2 of the Act of 1990 if not incompatible with the Constitution must nonetheless be given an interpretation that will accord with the Constitution namely one which required the sentencing judge to make a recommendation as to the minimum term which a person convicted for murder should serve before his temporary release is considered. It is to be noted that the premise on which this submission is advanced means such a recommendation would not be binding on the Minister. This somewhat belies the appellants’ arguments since if the trial judge makes a mere non-binding recommendation there is no judicial determination for the prisoner’s temporary release which would remain exclusively within the discretion of the Minister. Whether the making of any such recommendation would have some advantages from a policy point of view is not obviously a matter for the Court but such a process would not change the existing position in principle. In any event, the Court is satisfied that the terms of s. 2 are quite clear and the sole function of the Court, once a person has been convicted for the crime of murder, is to impose a sentence of life imprisonment. Furthermore, for the reasons already stated above, s. 2 of the Act of 1990 as so understood must be considered compatible with the Constitution. An implication that the section means that a judge must make a recommendation as to the length of imprisonment to be served is neither permissible nor required.

Having regard to all the aforesaid considerations the Court upholds the judgment of the High Court which decided that s. 2 of the Criminal Justice Act 1990 is compatible with the Constitution and dismisses the appeal against that finding.

Declaration of Incompatibility Pursuant to Section 5(1) of the European Convention on Human Rights 2003

The appellants have sought a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 which confines the Court’s jurisdiction to making a declaration that a statutory provision or a rule of law is incompatible with the State’s obligations under the Convention provisions. At the hearing of the appeal it was made clear by the appellants that the declaration was sought in respect of s. 2 of the Act of 1990 providing for mandatory life imprisonment in the case of the crime of murder. The application for such a declaration is not affected by the provision in the section that it may only be made where no other legal remedy is adequate and available since the Court has decided that the claims of the appellants on foot of their constitutional arguments should be dismissed.

The essence of the appellant’s claim is that s. 2 of the Act is incompatible with Article 5 of the European Convention in that the length of time actually served in prison by the appellant is left to be determined by the executive.

In particular the appellants rely on their assertions that the mandatory life sentence is an indeterminate sentence since it is ultimately left to the Minister to weigh up the range of prison terms possible and select the appropriate length of time to be served. In other words the Ministers carry out a judicial function and determines the limits of the sentence imposed by the Court since the sentence is not in substance a fixed penalty and confers on the executive the power to determine the actual length of imprisonment. Moreover the manner in which the length of the sentence which the appellants undergo is determined in an arbitrary fashion by a Minister many years after sentencing in a social and political context that may be entirely different from what it was at the time of the sentencing. The effect of s. 2 of the Act of 1990 is to submit the appellants to such a sentencing regime and constitute a breach of Articles 5(1) and 5(4) of the European Convention on Human Rights.

The relevant part of the Convention provides:

“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court…”

Article 5.4 of the Convention provides as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court reiterates that it is important to take account of the fundamental distinction between the sentence imposed by a court pursuant to s.2 of the Act of 1990 and any subsequent decision by the Minister to grant temporary release pursuant to the Act of 1960. The appellants were quite correct in submitting, as they did in relation to the constitutional issue, that the Court should not look simply at the formal provisions of the law but at the substance and effect of the law in practice concerning the sentence imposed on a convicted person. In this context the appellants attached significant importance to a number of decisions of the European Court of Human Rights which concerned the sentencing regime in England particularly as applied in the case of life sentences, including mandatory life sentences. The Court will make reference to those cases later in the judgment but for present purposes it is sufficient to state that the relevant sentencing regime in England and Wales at least means that a life sentence comprises of a punitive period (“the tariff”) and, when the “tariff” or punitive period has expired a subsequent period of preventative detention. That is not and could not be the position in law in this country as has already been explained in the part of the judgment addressing the constitutional issues. To emphasise the point the Court refers to the decision of Carney J., in The People (D.P.P.) v. Bambrick [1996] 1 I.R. In that case the accused was convicted of manslaughter and the trial judge concluded that the evidence, including psychiatric, evidence established such a strong and uncontrollable propensity on the part of the accused to commit serious crimes against women in the future that he would have been inclined to sentence the accused in a manner that would ensure “that he would not be released until in the opinion of the appropriate experts his release was safe from the point of view of society in general and women in particular.”
He went on to state “…I am precluded from approaching this case on the basis that over and above any considerations of punishment, this dangerous accused should be preventively detained until in the opinion of the most qualified experts he is safe to be let back into the community.” This conclusion that a sentence could not, as a matter of law, include a preventative element was arrived at after a consideration of the relevant case-law. Any convicted person on whom a sentence comprising a preventative element was imposed would be entitled to successfully appeal his sentence on that ground to the Court of Criminal Appeal or any such person who claimed that he was being detained in prison, by the executive or otherwise, as a form of preventative detention rather than punishment would be entitled to seek a review of the lawfulness of that detention pursuant to Article 40 of the Constitution.

The power of the executive, in this case the Minister, to release a prisoner “whether exercising what might be called conventional grounds of compassionate or of a humanitarian nature” as Keane C.J. put it in O’Neill v. Governor of Castlerea Prison (cited above) is a distinct executive function and does not constitute a determination of what punishment a person should undergo as a consequence of his crime. It is in the form of an exercise of clemency or commutation and although it may bring to an end the period of incarceration, subject to conditions in the case of temporary release. As already pointed out the life sentence imposed by the Court continues to exist notwithstanding any conditional release and he may be required to continue serving it if there are found to be good and sufficient reasons in accordance with law to withdraw the privilege of temporary release, or the period of release simply expires.

The distinction between these two functions was recognised by the European Court of Human Rights in Kafkaris v. Cyprus (judgment 12th February 2008). One of the issues in that case was whether the life sentence imposed on the applicant was in breach of Article 5(1). For present purposes it is not necessary to go into the particular facts of that case. At paragraph 117 of the judgment, when addressing the issue of the “lawfulness” of the applicant’s detention in the context of Article 5.1 the Court stated “The ‘lawfulness’ required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of Article 5.1 … Furthermore the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from “follow and depend upon” or occur “by virtue of” the “conviction”. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue …” In its conclusion at paragraph 119 the Court stated: “The Court observed that the applicant was convicted for premeditated murder by the Limassol Assize Court on 9 March 1989 and on the next day received a mandatory life sentence by that Court on the basis of s. 203(2) of the Criminal Code. Such a sentence is imposed automatically under the Criminal Code as the punishment for the offence of premeditated murder irrespective of the consideration pertaining to the dangerousness of the offender. In imposing the life sentence the Limassol Assize Court made it plain that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by the Criminal Code…”

In the ensuing paragraph 120 the Court went on to state “The Court considers therefore that the fact that the applicant was subsequently given a notice by the prison authorities on the basis of the prison regulations in force at the time, setting a conditional release date cannot, and does not, affect the sentence of life imprisonment passed by the Limassol Court or render his detention beyond the above date unlawful. In the Court’s view there is a clear and sufficient causal connection between the conviction and the applicant’s continuing detention which is pursuant to his conviction and in accordance with the mandatory life sentence imposed on him by a competent court, in conformity with the requirements of the Convention.

In Irish law any person detained following the imposition of a life sentence may only be detained for the purpose of giving effect to that punitive sentence. Therefore his or her detention is always and can only “depend upon” and be “by virtue” of the conviction.

Earlier in the same case the Court had stated at paragraph 97, that “the imposition of a sentence of life imprisonment on an adult offender is not of itself prohibited by or incompatible with Article 3 or any other Article of the Convention.” (emphasis added). That statement was made in the context of an issue under Article 3 which inter alia contains a prohibition against inhuman or degrading treatment and, as the Court noted in paragraph 92 of its judgment, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. At paragraph 98 it went on to state “An analysis of the Court’s case-law on this subject discloses that where national law affords the possibility of a review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3.” (emphasis added). The Court expressly acknowledged that the possibility of release by executive commutation was not only consistent with the Convention but may serve to ensure that it is consistent with Article 3.

The Court in that case having reviewed the limited scope in Cyprus at the time for discretionary release of persons serving a life sentence, including provisions for discretionary conditional release stated, at paragraph 103, “It follows from the above provisions that the prospect of release for prisoners serving life sentence in Cyprus is limited, any adjustment of a life sentence being only within the President’s discretion subject to the agreement of the Attorney General.” Accordingly the Court did not find “that life sentences in Cyprus are irreducible with no possibility of release;” and went on to conclude that there was no breach of Article 3. In its conclusion on this issue at paragraph 107 the Court stated: “It is true that the life sentence such as the one imposed on and served by the applicant without a minimum term necessarily entails anxiety and uncertainty related to prison life but these are inherent in the nature of the sentence imposed and, considering the prospects for release under the current system do not warrant a conclusion of an inhuman or degrading treatment under Article 3.” [The applicant succeeded in establishing a violation of Article 7 of the Convention which prohibits, inter alia, a heavier penalty being imposed than the one that was applicable at the time the criminal offence was committed. This issue concerned the specifics of Cypriot law and is unrelated to the issues in this case.]

The Court is satisfied, having regard to the decision of the European Court of Human Rights in the Kafkaris case including the case-law cited by the Court itself that:

(a) A mandatory life sentence imposed in accordance with law as punishment for an offence is not in itself prohibited by or incompatible with any Article of the Convention and,

(b) will not offend against Article 3 of the Convention “when national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner” and,

(c) this requirement may be met even if that prospect of release is limited to the exercise of an executive discretion.

In its analysis the Court of Human Rights made a clear distinction between the imposition of a mandatory and punitive life sentence by a court and the exercise of an executive discretion to commute, remit or grant conditional release which gives the prisoner a de facto and de jure prospect of release at some point. It clearly did not consider that the existence of an executive discretion to grant conditional release or commutation to constitute the determination or imposition of a sentence by the executive. On the contrary it sees it as a necessary but distinct matter for executive discretion which serves to satisfy concerns that an irreducible life sentence might be contrary to Article 3.

Provided a causal connection remains between the detention and the punishment imposed by the court of trial remains the sentence cannot be considered arbitrary or in breach of Article 5(1). The discretionary power of the executive to grant conditional release on humanitarian or other grounds does not affect the lawfulness of the continued detention of a person as long as that detention is punitive by reason of its nexus with the sentence imposed following conviction.

The Court is satisfied, for the reasons explained earlier in this judgment, that any objective analysis of the sentences being currently served by the appellants in this case pursuant to s. 2 of the Act of 1990 are the punitive sentences imposed by the court of trial. They are not, and cannot, be detained for any other purpose other than to serve the sentence imposed by the court. The Minister has not chosen to exercise any power to temporary release the appellants on any ground provided for in the Act of 1960. That does not affect what is objectively the case, de jure and de facto, that they remain detained in accordance with the punishment provided by law and ordered by the court of trial. If it was objectively otherwise this detention would be unlawful.

In support of their submissions for a declaration of incompatibility the appellants focused primarily on certain judgments of the European Court of Human Rights which pronounced on the compatibility of the United Kingdom sentencing regime for life sentences, including mandatory life sentences. The main authorities relied upon were Weeks v. United Kingdom [1987] 10 EHRR, Thynne, Gunnell & Ors v. The United Kingdom [1991] 13 EHRR 66, Thynne v. United Kingdom [1995] 19 EHRR 33 and Stafford v. United Kingdom [ 2002] 35 EHRR 1121. It is this line of cases which the appellants relied upon for their submissions that the sentence imposed by s. 2 of the Act of 1990, when account is taken of the power of conditional release by the Minister, must be considered incompatible with the Convention, in particular Article 5, because the sentence is arbitrary and its duration determined by the executive. That was the approach and conclusions adopted by the European Court of Human Rights in a number of those cases when pronouncing on the life sentence regime in the United Kingdom.

However, as the learned High Court judge has pointed out, and as adverted to above in this judgment, the sentencing regime in the United Kingdom which was under scrutiny in the relevant judgments relied upon by the appellants is radically different to the sentencing regime in this country. Counsel for the State pointed out, as is evident from the relevant case-law, that a common thread running through these cases was the dual element of punishment and preventative detention although the manner in which the sentencing system functioned evolved over the years.

The sentencing regime in the United Kingdom which was found incompatible with the provisions of the Convention consisted of a life sentence composed of a punitive element identified as “the tariff” period and the subsequent detention of a preventative nature, being for public safety reasons. Thus the nexus between the crime and its punishment was broken or terminated and the prisoner’s detention continued for reasons which were unrelated to the punishment of the crime. Because decisions on the further detention of a prisoner were not related to a sentence of punishment for the offence as imposed by a court, the European Court of Human Rights concluded that the procedures for deciding on a prisoner’s further or continued detention offended against the provisions of Article 5 of the Convention. These considerations placed the particular sentencing regime in a special category unlike the case of a person sentenced to life imprisonment because of the gravity of the offence committed. (See Weeks v. United Kingdom paragraph 58).

At page 73 in the Thynne case the Court of Human Rights having considered the law and in particular judicial dicta in cases that came before the courts of England and Wales stated: “… It seems clear that the principles underlying such sentences, unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of the security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner’s release. This view is confirmed by the judicial description of the “tariff” as denoting the period of detention considered necessary to meet the requirements of retribution and deterrents ….” The Court added “…the objectives of the discretionary life sentence as seen above are distinct from the punitive purposes of the mandatory life sentence and have been so described by the courts in the relevant cases … .”

In the Stafford case the Court analysed the evolution and changes in the sentencing regime in the United Kingdom and observed at paragraph 40 of the judgment in the case that “…The English courts have recognised that the mandatory sentence is like the discretionary sentence, composed of a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the tariff …” and in this respect the Court cited a number of English judicial decisions.

At paragraph 80 of its conclusions in that case the Court noted: “Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murder cases, must be considerations of risk and dangerousness.” Here the Court is referring to the mandatory life sentence for adults. The Court then went on to state in the same paragraph: “As Lord Justice Simon Brown commented in Anderson v. Taylor …, it is not apparent how public confidence in the system of criminal justice could legitimately require the continued incarceration of a prisoner who has served the term required for punishment for the offence and is no longer a risk to the public.”

In the Stafford case the prisoner had been recalled after release, even though he “must be regarded as having exhausted the punishment element for his offence of murder”. Since the specified “tariff” or punishment element of the offence had been exhausted before he was recalled to prison the detention of the prisoner after recall could not be justified as “punishment for the original murder”. It was on that basis that the Court concluded that the applicant’s detention on foot of the original mandatory life sentence (the one in which the punishment element had already been exhausted) was in violation of Article 5.1 of the Convention. That is in stark contrast to the longstanding position in Irish law as explained earlier in this judgment.

In the light of the foregoing the Court is satisfied that the learned High Court judge was correct in her conclusion that that case-law of the European Court of Human Rights relied upon by the appellants in their application pursuant to s. 5(1) of the Act of 2003 has no material application to the circumstances of this case where the sentences imposed under s. 2 of the Act are wholly punitive and bear no relationship to the system in the United Kingdom which was scrutinised by the Court of Human Rights. The Court of Human Rights continues to recognise that a mandatory life sentence as a punitive measure for a serious crime imposed in accordance with national law does not as such offend against any provision of the Convention provided at least that national law affords the possibility of review with a view to its commutation or conditional release (Kafkaris cited above).

No issue was taken with the procedures before the court of trial at which the appellants were sentenced to life imprisonment pursuant to s. 2 of the Act of 1960. Since the subsequent detention of persons so sentenced is at all times referable to and a consequence of the punitive sentence so imposed no issue arises concerning the compatibility of s. 2 of the Act of 1990 with Article 6 of the Convention.

Accordingly the appellant’s appeal on this ground is also dismissed.

Tuohy v Courtney and Ors

[1994] 2 ILRM 503
Finlay CJ
This Decision of the Court pronounced pursuant to Article 34.4.5° of the Constitution deals with two issues arising in this appeal.

It is an appeal brought by the plaintiff against the dismiss by order of the High Court of 5 October 1992 of his claim for a declaration that s. 11 of the Statute of Limitations 1957 (the 1957 Act) is inconsistent with the provisions of the Constitution and so much of a cross-appeal by the first and second named defendants (Downeys) against a finding made by Lynch J on the hearing of this action in the High Court that the plaintiff had sufficient locus standi in law to maintain and present a claim for the declaration of inconsistency with the Constitution.

The facts
In the month of September 1978 the plaintiff was anxious to purchase premises situate at 8 Annabella Terrace, Mallow, Co. Cork which were being advertised by auctioneers as for sale by private treaty. He instructed Downeys as the firm of solicitors on his behalf, firstly, to make a bid for the premises in the sum of £26,500 and secondly, if that bid was successful, to investigate the title, prepare the necessary documents and complete the sale.

The bid made by Downeys on behalf of the plaintiff was successful, a contract was submitted by the solicitors for the vendor and on the advice of Downeys was signed by the plaintiff in September 1978 having paid the appropriate deposit.

Subsequently, the title was investigated by Downeys and on the advice of Downeys the plaintiff paid the balance of the purchase money in December 1978 which was then put upon deposit and he was allowed into possession of the premises. Subsequently an assignment of the premises was on the advice of Downeys executed by the plaintiff and by his wife.

The plaintiff believed that he was purchasing a freehold interest in the premises in that he was purchasing by assignment a lease which could be converted into a freehold under the law applicable. In fact what he was purchasing was the unexpired term of a lease for 99 years from October 1919 in respect of which there was no right under any legal provision of renewal or of conversion into a freehold interest.

The learned trial judge in the High Court found that Downeys were negligent in failing to warn the plaintiff of the true nature of the title which he was acquiring in the sale and found that in fact the title he acquired was of very substantially less value than the purchase price which he had paid in 1978 of £26,500 and was not in general terms a good marketable title. The learned trial judge held that if the plaintiff was entitled to succeed and recover the damages which he had suffered as a result of the negligence of Downeys that they should be assessed in a total sum of £21,653.

The learned trial judge held on the evidence before him that whilst the plaintiff in the year 1983 became aware that the title which he had acquired was subject to certain covenants in the lease obliging him to paint and keep in repair the premises and to insure them, he did not become aware until he took the advice of different solicitors in the summer of 1985 of the true nature of the title which he had acquired and of the very substantial difference between its value and the value of a premises which was either freehold or held under a lease capable of being converted into a freehold. The learned trial judge further held that in effect the plaintiff could not reasonably be expected to have ascertained that fact before 1985.

Under the provisions of s. 11 of the Act of 1957 the plaintiff’s right of action accrued either in September or December of 1978 and the time limit for instituting proceedings either based in tort or breach of contract expired either in September or in December of 1984.

These proceedings were instituted by plenary summons issued on 10 April 1987.

It is clearly necessary for the court before reaching a decision on the issue of the constitutional validity of s. 11 of the 1957 Act to determine the question raised in Downeys’ cross-appeal of the locus standi of the plaintiff to maintain a claim for a declaration of inconsistency with the Constitution.

Issue of locus standi
The case made by Downeys in regard to this part of their cross-appeal was in short to assert that the findings of fact and inferences reached by Lynch J in the High Court were incorrect and that his application of the appropriate legal principles to them was also in error. The basic case being made by Downeys on this issue is that on the evidence the plaintiff having admitted that in 1983 he received and perused the title deeds at a time when the time limit had not yet expired and that he had observed at that time that he had got certain obligations by way of covenant in respect of painting, maintaining and insuring the premises that at law there must be imputed to him a knowledge of the accrual of the action and of the nature of the loss in broad terms which he had suffered and that therefore he was not a person who could assert as he sought to assert that he was not, and could not reasonably have been, aware of the accrual of the action until after the efflux of the time limit.

In reply to this on behalf of the plaintiff reliance was simply placed upon the correctness of the findings of fact and the inferences from them and the legal consequences flowing from them made by the learned trial judge in the course of his judgment.

The findings of Lynch J in the High Court relating to this issue may thus be summarised.

1. The plaintiff’s causes of action against the defendants Downeys whether they are founded in breach of contract or in tort accrued at the latest on 19 December 1978 and at the earliest on 19 September 1978.

2. By virtue of the provisions of s. 11 of the 1957 Act the plaintiff’s claims would accordingly have become time barred by either 18 September 1984 or by 18 December 1984.

3. This action was commenced by plenary summons issued on 10 April 1987.

4. The plaintiff became aware in March 1983 that the title which he acquired was a leasehold and not as he had thought a freehold title. He was annoyed at finding that he had additional obligations to insure, repair, and paint the premises, but as he would have to do these things anyway his annoyance would be fully assuaged by a modest reduction of Downeys’ bill of costs which reduction he sought on the basis that Downeys had been negligent.

5. Downeys were the plaintiff’s solicitors until the summer of 1985 when he instructed another firm of solicitors for the purpose of selling the premises at 8 Annabella Terrace.

6. Up to that time the plaintiff did not appreciate the true significance of the difference between the title he believed he was getting and what he actually got.

7. The plaintiff could not be ‘criticised for not consulting different solicitors earlier.’

These findings the court is satisfied in so far as they consist of findings of primary fact are fully supported by the evidence and in so far as they consist of inferences from the facts are correct inferences.

The court is satisfied that they constitute a finding by the learned trial judge that the plaintiff whilst aware of facts within the six year time limit which led him to the conclusion that the defendants Downeys had been negligent was unaware until after the expiry of the time limit that he had suffered any significant loss or damage which would warrant the institution of an action such as he eventually instituted in 1987.

The conclusions further appear to constitute a decision that the plaintiff could not by steps which he reasonably might have been expected to take have become aware of the true position and his true loss before the summer of 1985.

The basis of the plaintiff’s claim for the making of which his locus standi is challenged is briefly but accurately summarised by Lynch J in the following paragraph of his judgment which is contained at p. 33:

The plaintiff’s challenge to the constitutionality of s. 11 of the 1957 Act is on the basis that in his case the section has so operated as to time bar his action before he could reasonably be expected to have appreciated that he had any worthwhile or significant claim against Mr Courtney.

The court is quite satisfied that for the purpose of presenting such a claim the findings and conclusions reached by Lynch J which have just been summarised in this judgment constitute clear evidence of the existence of the plaintiff’s locus standi.

The cross-appeal of the defendants Downeys on this issue must therefore be dismissed.

Terms of s. 11 of the 1957 Act
The material provisions of s. 11 of the 1957 Act are as follows:

S. 11(1)(a) provides as follows:

The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—

(a) actions founded on simple contract.

S. 11(2)(a) provides as follows:

Subject to paragraphs (b) and (c) of this subsection, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Paragraph (b) of subs. (2) excepts from the six-year time limit actions involving claims for damages in respect of personal injuries and paragraph (c) of subs. (2) excepts actions claiming damages for slander.

In the course of the submissions made on behalf of the plaintiff in furtherance of the challenge to the constitutionality of s. 11 reliance was placed on the obiter dictum of Henchy J in Cahill v. Sutton [1980] IR 269 where (though the matter did not arise in any way for decision before the court in that case) he suggested that the justice and fairness of attaching to s. 11(2)(b) of the Act of 1957 (dealing with claims involving personal injuries) a saver for when the time limit might have expired before a plaintiff was or could reasonably have been aware of the accrual of the cause of action and the damage flowing from it, was so obvious that ‘the enactment by our parliament of a similar provision would merit urgent consideration.’ Reliance also was placed on the judgment of McCarthy J in Hegarty v. O’Loughran [1990] 1 IR 148; [1990] ILRM 403 where again though speaking obiter to the issues before the court the learned judge quoted with approval the criticisms of Henchy J of the Act of 1957 and those of Lord Reid in Cartledge v. E. Jopling & Sons Ltd [1963] AC 758 with regard to the English Statute of Limitations of 1939 containing a fixed time limit similar to the Irish provision and without any such saver.

Reliance was also placed upon the obvious approval of Carroll J in the High Court in the case of Morgan v. Park Developments Ltd [1983] ILRM 156 of the judgment of Lord Reid to which reference has just been made.

On behalf of the plaintiff it was further urged that the inherent jurisdiction of the courts to dismiss a plaintiff’s claim even if brought within a statutory time limit upon the basis that the actual delay in bringing it forward was so gross as to render it an injustice to the defendant to try and meet the case, constituted what was described as a safety net which made a fixed time limit without any saver for the plaintiff such as was being contended for, unbalanced and arbitrary and an apparent and unjustifiable inequality in the treatment in the Statute of Limitations of the position of a defendant and a plaintiff.

On behalf of both Downeys and the Attorney General the broad contention was that the provision of the Statute of Limitations and of any statute of limitations was a necessary and inevitable part of the procedure of courts and was a defence both in the interests of potential defendants and in the interests of the public good against the bringing of stale claims. The question as to the length of and in what way with regard to any particular type of claim a limit should be expressed; what possible categories of extension to a period of limitation should be provided; and the consequential balance between the position of the plaintiff and the defendant in any particular form of action were all matters of policy which were strictly under the Constitution within the power of the legislature and not of the judiciary. The courts it was said could not possibly intervene with regard to such questions of policy unless they were satisfied that the policy expressed in the Act was wholly arbitrary and wholly and unconstitutionally unfair to a person in the position of the plaintiff so as to lack any form of balance or any justification with regard to the common good. It was firmly submitted that this section even having regard to the position of such persons as the plaintiff could not be construed as coming within that category.

The court has carefully considered the issues thus raised and has come to the following conclusion.

Decision on the constitutional validity of the impugned section
The Act of 1957 is presumed to be consistent with the provisions of the Constitution until an inconsistency is clearly established to the satisfaction of the court and it is on that basis that the court has approached the making of this decision.

The first issue which must be determined is the precise nature of the constitutional right which the plaintiff claims has been wrongfully invaded.

The court is not satisfied that it is the constitutional right of access to the courts.

In his judgment delivered in this Court in the case of Oó Domhnaill v. Merrick [1984] IR 151; [1985] ILRM 40, Henchy J at p. 158/45 stated as follows:

Although the statute states that an action ‘shall not be brought’ after the expiration of the period of limitation, such a statutory embargo has always been interpreted by the courts as doing no more than barring a claim instituted after the expiration of the period of limitation if, and only if, a defendant pleads the statute in his defence. It is only when a defendant elects to rely on the statute as a defence that the statutory bar operates. Consequently, although a claim may be plainly, and on the face of the claim, brought after the expiry of the relevant period of limitation, the action will not be held to be statute barred unless the defendant elects by a plea in his defence to have it so treated. Thus, although the statute says that the action ‘shall not be brought’ after the statutory period such a prohibition in a statute of limitations has been construed, not as barring a right to sue, but as vesting in a defendant a right to elect, by pleading the statute, to defeat the remedy sought by the plaintiff.

So construed, the statute does not bear on a plaintiff’s right to sue , either within or after the period of limitation. What it affects is a plaintiff’s right to succeed if the action is brought after the relevant period of limitation has passed and if a defendant pleads the statute as a defence. In such circumstances the statute provides an absolute defence to that particular action.

Whilst that judgment dealt with the case of delay after the institution of proceedings within the applicable period of limitation the court is satisfied that it represents a correct analysis of the effect of the Statute of Limitations and adopts it for the purpose of this decision.

It clearly is inconsistent with the proposition that the effect of a statutory time limit is an invasion of the right to sue and therefore of the constitutional right of access to the courts.

Counsel for the Attorney General has in this case submitted that the true legal effect of s. 11 of the Act of 1957 is to restrict the right of a person to litigate which he accepts would be an unenumerated constitutional right. In the decision of this Court in O’Brien v. Keogh [1972] IR 144 pronounced by Ó Dálaigh CJ the right of an infant to maintain an action for damages for personal injuries caused by the negligent driving of a motorcar was similarly identified where at p. 155 of the decision he states:

Counsel for the Attorney General was right to concede that the right to litigate claims was a personal right of the citizen within Article 40 of the Constitution.

Interpreting the right to litigate in the case of a plaintiff at least, as the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law, this Court would accept both this analysis of the right which the plaintiff claims to have been invaded and the fact that it must constitute an unenumerated personal constitutional right.

As such it attracts the protection of Article 40.3.1° of the Constitution which provides:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

It was asserted on behalf of the plaintiff that in addition to being a personal right the plaintiff’s right to litigate was a property right and as such also attracted the protection of Article 40.3.2° of the Constitution which provides:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

In the decision of this Court in O’Brien v. Keogh not only as has been mentioned was ‘the right to litigate’ identified as an unenumerated personal right but it was also apparently identified, though not expressly, as a property right where at p. 156 of the decision it was stated as follows:

The plaintiff’s second submission raises a more serious problem. Has the State in the provision which it has made with regard to infant citizens protected, as best it may, from unjust attack and, in the case of injustice done, vindicated the property rights of such citizens?

 

Furthermore, in that case the question as to whether the ultimate decision of the court condemning the impugned statutory provisions depended upon their invasion of the constitutional personal rights or property rights of the plaintiff is not resolved by the final declaration which simply states that the subsection ‘fails to match up to the guarantee’ contained in Article 40.3.

In the decision of this Court in O’Brien v. Manufacturing Engineering Co. Ltd [1973] IR 334 pronounced by Walsh J the right to pursue a cause of action at common law appears to have been accepted as a personal right and was expressly accepted as a property right, cf. pp. 366–7.

In Moynihan v. Greensmyth [1977] IR 55 O’Higgins CJ in pronouncing the decision of this Court drew attention to an apparent incompatibility between the decisions in the two O’Brien cases which have just been referred to and the decisions in Foley v. Irish Land Commission [1952] IR 118 and Attorney General v. Southern Industrial Trust Ltd (1957) 94 ILTR 161.

On the facts of this case, neither counsel for the plaintiff nor counsel for the defendants have been able to point to any material difference in the constitutional protection which would apply to this right to litigate if it were on the one hand considered to be exclusively an unenumerated personal right or on the other hand if it were considered to be exclusively a constitutional property right or indeed if it were considered to be both. The court is satisfied that no such difference exists on the particular facts and having regard to the particular rights involved in this case and it is neither necessary nor appropriate therefore in this decision to reconcile or adjudicate upon the apparent inconsistencies to which attention has been drawn. It may well indeed be that this controversy may remain academic as is suggested at p. 1064 of the third (1994) edition of Kelly on The Irish Constitution .

It has been agreed by counsel and in the opinion of the court quite correctly agreed that the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.

The court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.

It is in accordance with these principles that the court approaches the ultimate task of deciding upon the constitutional validity of these impugned statutory provisions.

It cannot be disputed that a person whose right to seek a legal remedy for wrong is barred by a statutory time limit before he, without fault or neglect on his part becomes aware of the existence of that right, has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance.

So to state however does not of itself solve the question as to whether a statute which in a sense permits that to occur is by that fact inconsistent with the Constitution.

Statutes of limitation have been part of the legal system in Ireland for very many years and were a feature of the system of law operating in Ireland apparently both before and after the Act of Union and have continued from 1922 up to the present, cf. judgment of Griffin J in Hegarty v. O’Loughran [1990] 1 IR 148; [1990] ILRM 403 at p. 157/411.

The primary purpose would appear to be firstly to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.

Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.

Thirdly, they are designed to promote as far as possible and proper a certainty of finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities.

The counter balance to these objectives is the necessity as far as is practicable or as best it may for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limit statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is ascertain whether the extent and nature of such hardship are so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.

It has been suggested that the facts of this case are almost unique and that what is described as a saver inserted in the time limiting provisions to meet those facts would if it had been inserted make no significant difference to the protection which the Act of 1957 affords to potential defendants.

It has also been suggested that the jurisdiction of the courts as laid down in Ó Domhnaill v. Merrick [1984] IR 151; [1985] ILRM 40 and Toal v. Duignan [1991] ILRM 135 and 140 to dismiss as unconstitutionally unjust, claims which are brought even within a statutory permitted time but which are in fact grossly delayed is a ‘safety net’ to protect the defendant sufficient to permit of a saver to protect the plaintiff who within the statutory time limit is unaware of his right of action. Such a ‘saver’ it is urged would not in any way significantly diminish the certainty or finality of the time limit.

The court does not accept that either of these contentions is of such strength as would make an inflexible time limit of six years for breach of contract and tort causing damage other than personal injuries clearly unconstitutional.

The period of six years is objectively viewed as a substantial period. Historically, it has remained unchanged for this type of action since the Common Law Procedure (Ireland) Act of 1853 and no shortening of it has been legislatively created notwithstanding the very significant increase in literacy, understanding of legal rights and sophistication which has as a matter of common knowledge occurred in the years since that time.

The Act of 1957 contains in Part III thereof extensions of the periods of limitation in cases of disability, acknowledgement, part payment, fraud and mistake. These extensions constitute a significant inroad on the certainty of finality provided by the Act.

The right of a defendant having been sued within a permitted time limit to plead a gross or unreasonable delay sufficient to lead to the dismiss of the action against him as an exercise by the courts of its inherent jurisdiction renders him much less secure and much less protected against loss than a fixed time limit subject to the extensions only which are already contained in the Act of 1957. To mount such a plea in an action of substance is a burdensome and expensive process leading as it has done in some of the cases which have been decided by this Court to a trial in the High Court and an appeal to this Court. The time scale of such proceedings is quite extensive and the period of anxiety and uncertainty for the defendant even if eventually he or she is successful will frequently be very great. Unless in cases which may not be frequent where the plaintiff has substantial assets such a proceeding which the defendant must mount to protect his position will be done completely at his own expense.

These considerations are but some of the matters which the Oireachtas could properly consider in reaching a decision which is the real nub of this case as to whether it should or should not add to the grounds of extension of limitation periods already contained in the Act of 1957 a ground of discoverability of the cause of action. Together with those considerations of course must go the consideration of examples of injustice such as appear to have occurred in this case.

For the Oireachtas to reach a decision either to add or not to add to the extensions of limitation periods contained in Part III of the Act of 1957 an extension relating to discoverability with regard to this particular time limit imposed by that Act, is a decision which in the view of this Court can be supported by just and reasonable policy decisions and is not accordingly a proper matter for judicial intervention.

It has not therefore been established to the satisfaction of the court that s. 11(1)(a) or s. 11(2)(a) of the Statute of Limitations 1957 is inconsistent with the Constitution and this appeal must accordingly be dismissed.

O’FLAHERTY J

(Finlay CJ, Egan, Blayney and Denham JJ concurring) delivered his judgment on 26 July 1994 saying: This judgment is concerned with the dismiss of the plaintiff’s claim for damages for negligence brought against the third and fourth named defendants (‘Moylans’) who were the solicitors for the vendor in the transaction in question and who had supplied to the plaintiff information — inaccurate information according to him — as regards the title to the premises 8 Annabella Terrace, Mallow.

Without calling on counsel for Moylans, the court intimated in the course of the hearing that the appeal of the plaintiff against Moylans should be dismissed.

I now set out the reasons why the appeal should be dismissed. It is pertinent to reiterate the function of this Court in reviewing findings of fact made by a High Court judge. The relevant principles have been outlined by this Court in the recent decisions: Hay v. O’Grady [1992] 1 IR 210; [1992] ILRM 689 and Best v. Wellcome Foundation Ltd [1993] 3 IR 421; [1992] ILRM 609 at pp. 482–3/642–3. The jurisdiction of this Court in reviewing findings of primary fact made by a trial judge is confined to determining whether the findings made are supported by credible evidence.

It was pleaded on behalf of the plaintiff in the statement of claim delivered on his behalf that he had a long standing personal and professional relationship with the Moylans, father and son, that is Richard Moylan and John Moylan. It is clear that the firm had acted for him in recent ejectment proceedings, for example.

The plaintiff attended on Mr John Moylan to ascertain the nature of the title to the premises. It was pleaded that Mr Moylan informed the plaintiff that the title in question was freehold title subject to a ground rent but that he explained that the grounds upon which the house was built were owned by a third party but that the house itself would be the property of the plaintiff. Having been asked by the manager of the branch of Allied Irish Bank plc at Mallow to ascertain details of the title it was pleaded, further, that the plaintiff visited Mr Moylan’s office again on 15 September 1978 and repeated his request for information concerning the title; that Mr Moylan again informed the plaintiff that the title was freehold title subject to a ground rent of £40 per annum for 99 years from 1923. In giving the said advice and information to the plaintiff it was pleaded that Mr Moylan was under a duty to exercise all due professional care, skill and diligence as well as having a fiduciary duty to represent accurately to the plaintiff the type of title which was the subject matter of the said sale particularly having regard to the trust and confidence which the plaintiff reposed in Mr Moylan, which trust and confidence was well known to Mr Moylan. Further, it was pleaded that Mr Moylan was fully aware that the plaintiff was borrowing money from the AIB for the purpose of completing the said purchase and was relying upon the information and advice which Mr Moylan gave to the plaintiff.

The statement of claim went on to plead that in giving the said advice and information to the plaintiff Mr Moylan was guilty of negligence and breach of duty in that the said title was not in fact a freehold title subject to a ground rent, but was on the contrary a leasehold interest only for a term of 99 years from 1 October 1919 at a yearly rent of £42.50. In advising and informing the plaintiff as aforesaid, it was pleaded that Mr Moylan negligently and in breach of duty omitted to make due and proper inquiries as to the nature of the said title or misunderstood the nature of the said title.

It is clear that there was a sharp conflict of evidence between the plaintiff and Mr Moylan as to what was said at the two meetings.

The learned trial judge with characteristic lucidity summarised this aspect of the case as follows:

The plaintiff called into Moylans first either on 14 or 15 September 1978 and spoke to Mr John Moylan. He then called to his bank and spoke to the manager who sent him back to Mr John Moylan to clarify as to whether the interest for sale was freehold or leasehold. The plaintiff called back to Mr John Moylan and had a further conversation with him and then returned to his bank manager and the application form was filled in by the manager at paragraph 8 thereof as follows:

Freehold. Ground Rent £40 p.a. for 99 years from 1923.

These conversations between the plaintiff and Mr John Moylan and the bank manager all took place either on 15 September 1978, the date of the loan application form, or the first one or two of them may have taken place on 14 September and the remaining conversations on 15 September 1978.

There is a sharp difference of recollection as to the content of the two conversations between the plaintiff and Mr John Moylan. The plaintiff says that on the first occasion Mr John Moylan told him that the title was a ground rent: he asked what that meant and was told that the ground was owned by Mrs Purcell but the house would always be his: he asked what would happen when the 99 years expired and was told there would be an increase in the ground rent. The plaintiff says that having been sent back by the manager Mr John Moylan told him that the title was freehold with a ground rent of £40 per annum for 99 years from 1923 and the plaintiff further says that he wrote this down in the presence of Mr John Moylan in a notebook which he kept for reminding himself of matters to be attended to mainly in connection with his practice as a veterinary surgeon.

Mr Moylan says that he was quite familiar with the title to the houses in Annabella Terrace in Mallow and he has no doubt that he told the plaintiff that the title was leasehold and moreover that he did not mention a ground rent. He says he would never have said that the ground belonged to Mrs Purcell but that the house would be the plaintiff’s and he further denied that the plaintiff wrote in his presence in the notebook produced. He was emphatic that he could not possibly have told the plaintiff twice that the title was freehold with his familiar knowledge of it as a leasehold litle. He was also emphatic that the entry in the plaintiff’s notebook is legal nonsense insofar as it refers both to a freehold and a term of 99 years from 1923 and moreover is wrong in its reference to freehold in the amount of the rent and in the year from which the 99 year term ran.

I interpose here to set out Mr Moylan’s full response in relation to this aspect of the case:

I could not under any circumstances have given that information; it is absolute nonsense; it means nothing. The amount of rent is wrong, the date of commencement of the lease is wrong and, most importantly, as far as I am concerned anyway, my Lord, it is legal nonsense to say it is freehold subject to a rent for ninety-nine years. The only freehold subject to [the] rent which I am aware of was a [fee] farm rent. I was perfectly well aware that this property was not held as a fee farm rent title.

The learned trial judge continued:

As regards the entry in the plaintiff’s notebook I am not satisfied that this was written in Mr John Moylan’s presence as the plaintiff believes and gave evidence. His recollection is wrong. The entry is squeezed in at the bottom of a page in the notebook in a space equal to three lines. On the next three pages there are notes regarding the then pending ejectment proceeding by the First National Building Society against the plaintiff in relation to the flat then occupied by the plaintiff at 49 Bank Place, Mallow. Those proceedings terminated on 12 September 1978 that is to say some two or three days before the plaintiff’s conversations with Mr John Moylan. If the plaintiff were noting down what Mr John Moylan was saying as he was speaking the plaintiff would have no idea as to how long his note might extend and would therefore have noted the conversation at the end of the then entries in the notebook with unlimited pages to accommodate a full note of what Mr Moylan would tell him regarding the title.

I think the probabilities are that the plaintiff’s note is a copy of the entry on the loan application form and not vice versa. The bank manager made no mention of seeing the notebook on either occasion much less copying the entry on the loan application form from the notebook. The plaintiff completely misunderstood what Mr Moylan had told him about the title. He went back to the manager and persuaded him that the appropriate entry on the loan application form was as already quoted in this judgment and which is as Mr John Moylan said legal nonsense. In this connection it is important to observe that there is no reference to rent simpliciter on the loan application form, even though at paragraph 8 of the form a leasehold title is contemplated as well as freeholds. There is a space immediately following a statement that a title is leasehold title for entering the amount of the ‘ground rent’ and not just ‘the rent’. It is from paragraph 8 of the loan application form that the plaintiff got the term ‘ground rent’ firmly fixed in his mind in relation to his conversation with Mr John Moylan.

It is worth describing exactly the relevant entry at paragraph 8 of the loan application form. First there are printed the words ‘freehold/leasehold’ and then follows a blank space. The word ‘freehold’ was originally crossed out by the manager leaving ‘leasehold’ standing. When the plaintiff returned after speaking to Mr John Moylan the second time the manager crossed out the word ‘leasehold’ and wrote in his own handwriting ‘freehold’ in the blank space.

Then come the printed words ‘ground rent £’ and in the blank space following there is typed 40. Then there is printed ‘P.A. for’ and in the blank space following is typed ‘99’. Then there is printed ‘years from’ and in the blank space following is typed ‘1923’.

Thus the line in paragraph 8 of the loan application form reads as already quoted:

Freehold — Ground Rent £40 P.A. for 99 years from 1923.

The entry as written by the plaintiff into his notebook reads:

Freehold — ground rent £40 per annum for 99 years from 1923.

Save that the words ‘per annum’ are written in full instead of the abbreviation ‘P.A.’ on the printed form the entry in the notebook is identical with the entry on the form. If the entry on the form were copied from the notebook it would be rather a coincidence that the order of the printed entries should have followed so conveniently and exactly the order in the notebook. There is no coincidence in the order in the notebook following the order on the form if the entry in the notebook were copied from the form and in that event it would be clear that the entry could be conveniently fitted into the three line space at the bottom of the page in the notebook preceding the entries about the ejectment proceedings from the flat at 49 Bank Place which clearly predated this entry in the notebook.

This case provides a classic example of the perils of hearsay evidence. The plaintiff purported to tell the bank manager what Mr John Moylan had told him as to the title and the manager accepted that and made what he thought were the appropriate though in fact garbled entries in the loan application form which then were copied back into his notebook by the plaintiff at some date not appearing from the evidence. What a pity that the bank manager did not short circuit the hearsay process by himself telephoning Mr John Moylan and getting the information at first hand.

By the time the bank through their legal department realised the unsatisfactory nature of the title which they had acquired as security their £16,800 had long since been lent and spent and all that they could do was to sit tight and hope for the best. It is little wonder that they appeared to be so helpful and accommodating to the plaintiff in arranging the payment off by him of the mortgage on No. 8 Annabella Terrace so that the only debt now owing by the plaintiff to them is well secured by a mortgage of Bearforest.

The plaintiff under cross-examination by counsel for Moylans stated for the first time that on one of the two occasions when he spoke to Mr John Moylan Mr Moylan looked up a textbook. Mr John Moylan strongly denied that this occurred and I think it is significant that the plaintiff made no mention of this allegation in examination in chief or in cross-examination by counsel for Mr Courtney. Not that looking up a textbook proves anything in particular but I presume that the plaintiff was implying that Mr John Moylan was not sure of the title and had to consult a textbook before telling the plaintiff what was its nature.

I am satisfied that the plaintiff did not properly understand what he was told by Mr John Moylan and believes that he was told as he stated in evidence. I am not satisfied that Mr Moylan who had sent off the contract to Mr Courtney with the title and interest for sale clearly and correctly stated thereon together with the actual title documents themselves on 13 September 1978 either the very day before or just two days before his conversations with the plaintiff misdescribed the title in the manner alleged or at all.

That being so the plaintiff’s claim against Moylans fails and must be dismissed.

In appealing against the finding of the High Court judge in this regard, counsel for the plaintiff makes the point that Moylans had acted for the plaintiff on a number of occasions in the past and that this was not adverted to in the judgment. But, in short, his submission (as well as the grounds of appeal lodged) amounts to this: that the learned trial judge wrongly preferred the evidence of John Moylan to the evidence of the plaintiff.

In my judgment, this case boils down fairly and squarely to a question of who was to be believed. The judge came to the conclusion that John Moylan was to be believed and he had good grounds for holding that he should be believed if for no other reason than that within a day or two before these meetings with the plaintiff Mr Moylan had prepared the contract and the documents of title in respect of the premises in debate all of which were found to be correct. As well as that, it is impossible to escape the conclusion that for Mr Moylan as a highly qualified solicitor to describe a premises as freehold but subject to a rent was *522 ‘legal nonsense’ (aside from a fee farm grant to which the premises were not subject and to which Mr Moylan had adverted in the extract quoted from his evidence, above). Then there was the matter of the notebook entry.

In this case far from there being any doubt about the entitlement of the judge to prefer the evidence of Mr Moylan the surrounding circumstances overwhelmingly point to the correctness of his finding, in particular, having regard to the matters corroborating the correctness of Mr Moylan’s testimony that I have already indicated.

For these reasons, the plaintiff’s appeal as against the Moylans should stand dismissed.

The State (Trimbole) v. The Governor of Mountjoy Prison

 

Egan J.[1985] IR 550
H.C.

 

I consider the following sequence of events to be relevant:
1. Some short time after 2 p.m. on the 25th October, 1984, the prosecutor was arrested by Detetive Inspector Cormac Gordon in purported pursuance of s. 30 of the Offences Against the State Act, 1939. In the early afternoon of the 26th October, 1984, he was informed by Inspector Gordon that a Garda officer not below the rank of Chief Superintendent had ordered his further detention for an additional period of twenty-four hours in purported exercise of powers under the said section.
2. At approximately 3 p.m. on the 26th October, 1984, an application was made to me on behalf of the prosecutor in the name of Michael Hanbury (under which name he had at all relevant previous times been referred to) and I directed that an enquiry should be held at 7 p.m. that same evening as to the legality of his detention. This enquiry was duly held and it concluded at approximately 10 p.m. During the course of the enquiry evidence was given by Inspector Gordon that, based on information which he had received from Inspector McGroarty (who also gave evidence), he had formed a suspicion prior to the arrest that the prosecutor had been in possession of a firearm and ammunition at the Gresham Hotel between 4-6 p.m. on the 24th October, 1984. I was satisfied after hearing the evidence that no genuine suspicion could have been formed by the Gardaí in relation to possession by the prosecutor of any firearm or ammunition and I found as a fact that the evidence as to the genuineness of the suspicion was most unconvincing. I accordingly found that the detention of the prosecutor was illegal and I made an order for his release.
3. A short while later outside the immediate precincts of the Four Courts, the prosecutor was arrested on foot of a provisional warrant issued pursuant to the provisions of s. 27 of the Extradition Act, 1965, which described the prosecutor as “Robert Trimbole alias Robert Trimboli and Michael Pius Hanbury.” This arrest took place shortly after 10 p.m. on the 26th October, 1984. The provisional warrant bore the same date and had been issued by District Justice Ballagh at approximately 6 p.m. on that date.
4. Whilst not in strict sequence, two further events took place which were argued to be of significance in the present matter:
(a) The Government on the 26th October, 1984, made an order that Part II of the Extradition Act, 1965, would apply in relation to the Commonwealth of Australia as and from the said date. The court was informed that this order was signed at 1.15 p.m. on the 26th October, 1984, and the time given was not disputed. The validity of the order was challenged in this matter and will be dealt with later. The order is entitled “Extradition Act, 1965 (Part II) (No. 19) Order, 1984″ and was published in Iris Oifigiúil on the 30th October, 1984.
(b) On the same date as the date of the making of the Government order hereinbefore referred to i.e., on the 26th October, 1984, the Governor General of Australia made regulations entitled”Extradition (Republic of Ireland) Regulations” which provided that “The Act applies to the Republic of Ireland subject to the limitations, conditions, exceptions and qualifications specified in regulation 4.” The Act referred to is the Extradition (Foreign States) Act, 1966.
5. Following on his arrest on foot of the provisional warrant on the 26th October, 1984, the prosecutor was brought to the District Court and was remanded in custody. Further orders of remands in custody were made from time to time in the District Court.
6. On the 2nd November, 1984, an application was made to me on behalf of the prosecutor for an order of habeas corpus ad subjiciendum on specific grounds, namely that the remand orders were deficient in that they only amounted to recitals and did not constitute actual orders. They were compared to a deed without a habendum. I did not accept the argument as being valid and refused to make an order for the release of the applicant.
7. On the 8th November, 1984, the Minister for Justice after reciting therein the Government order of the 26th October, 1984, and that a request had been received by him on the said 8th November, 1984, from Australia, communicated by its Ambassador, for the extradition of Robert Trimbole, made an order in the following terms:
“Now I, Michael Noonan, Minister for Justice, by this Order hereby signify to you, Mary Kotsonouris, a Justice of the District Court, that the aforesaid request has been duly made by the Commonwealth of Australia and received by me in accordance with Part II of the Extradition Act 1965.”
This order of “signification” was made under s. 26 of the Act and was a vital step in procuring the ultimate surrender to Australia of the prosecutor. He could not have been detained on foot of the provisional warrant for a period longer than eighteen days. The validity of this order is challenged.
8. Application was made on the 17th November, 1984, to District Justice Mary Kotsonouris in the Dublin Metropolitan District Court for orders committing the prosecutor to prison there to wait the order of the Minister for his extradition. A hearing took place but was adjourned to the 21st November, 1984, when it was resumed before the same District Justice, this time sitting at Dundrum courthouse. On that date the learned District Justice made orders committing the prosecutor to be detained in Mountjoy Prison until the Minister should otherwise order in accordance with Part II of the Act of 1965 or until the High Court or Supreme Court should order his release. These committal orders refer to sixteen Australian warrants. Eighteen warrants in all were before her but it appears to have been conceded by the State that two of them did not disclose offences which, if they had been committed in Ireland, would have constituted crimes which would attract a maximum sentence of not less than twelve months. The committal orders made are exhibited by photostat copies thereof annexed to the certificate of the Governor of Mountjoy Prison dated the 18th December, 1984. They are numbered “A1” to “A15” (inclusive) and “A18”.(“A1” is out of sequence and appears at the end).
I shall attempt to deal with the arguments made in the case under separate headings even though this may occasionally result in an over-lap.
A. The order of the Government dated 26th October, 1984
It was suggested in the opening arguments that the Government in being “satisfied” of the matters mentioned in the order was exercising powers of a judicial nature which it would not be entitled to do under the Constitution. This argument was not pursued and, in my opinion, rightfully so.
The order was made under s. 8 of the Act of 1965 which provides in sub-s. 1 that:
“Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by Order apply this Part in relation to that country.”
It is to be noted that the order does not refer to any international agreement or convention and the expressed specific ground is stated to be the Government’s satisfaction that reciprocal facilities would be afforded by the Commonwealth of Australia. It was argued that the order was ultra vires in that true reciprocity as required by the section would not result.
Various dictionary meanings of the word “reciprocal” were mentioned but, in my view, they did not supply an answer to the problem. The main argument as to the absence of reciprocity lies in the fact that Part II of the Act when thus applied does not contain any requirement in this country ofprima facie evidence such as would justify the trial of the person sought to be extradited. The position under the relevant Australian statute differs in this regard. Under s. 17, sub-s. 6 (b) of the Extradition (Foreign States) Act, 1966, there must inter alia be produced to the Magistrate “such evidence as would, in the opinion of the Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory.”
It is argued that “reciprocal” must mean “identical” in scope and substance but the Act does not say so. An evidence requirement might well be considered desirable in all extradition applications but this does not solve the problem. The respondent argues, in effect, that “reciprocity” in its context means no more than “mutuality” and that there is no requirement that procedures or provisions should be completely identical.
I was asked to look at a telex report of a judgment of the High Court in Australia in a case where the prosecutor Robert Trimbole, sought an injunction to restrain the Australian authorities from proceeding further with the request for his extradition on many grounds which are not relevant to the issues in this case. His application was dismissed. The “requirement of evidence” distinction was raised but it was pointed out that s. 10, sub-s. 4 of the Australian Act of 1966 did not require that the Governor General should be satisfied that the law of the foreign State provides a reciprocity which corresponds in every detail with the Australian law. It recognised that the law of the foreign State might impose limitations, conditions, exceptions or qualifications which are not necessarily the same as those of Australian law.
It is now incumbent on me to decide the matter and I have come to the conclusion that reciprocity does not require identity. The constitutional validity of this order will be dealt with under another heading.
B. The order of the Minister dated 8th November, 1984
This order was made under s. 26 of the Extradition Act, 1965, which provides in sub-s. 1 that:
“If the Minister receives a request made in accordance with this Part for the extradition of any person he shall, subject to the provisions of this section, by Order signify to a Justice of the District Court that the request has been made and the Justice shall issue a warrant for the arrest of that person.”
It is perfectly clear that the Minister would not be entitled to make such an order without having received a request for extradition supported by the documents set forth in s. 25 of the Act. The requirements of s. 25 will be dealt with later in the course of this judgment. Hence the over-lap to which I have referred earlier.
It has been argued that this order is a bland signification which does not describe any offences and does not define the scope or limits of any inquiry to be conducted by the District Justice. It is correctly stated that there is no express provision for the transmission to the District Justice of the documents required by s. 25 to support a request for extradition. But these arguments do not bring about a fatality to the order. The offences must be described in the s. 25 documents and no final surrender could lawfully be achieved unless the District Justice applied his or her mind as to the adequacy of the s. 25 documents when dealing with an application for committal under s. 29 of the Act. It is, in any event, common case that the relevant documents (whether adequate or not) were in fact, transmitted to District Justice Mary Kotsonouris and were scrutinised by her.
It was also argued that the Minister was the person who would have to be satisfied that the documents transmitted to him with the request for extradition complied with the requirements of s. 25 of the Act and also involved him in the necessity of forming a judgment that the offences referred to in the documents were “extraditable offences” within the meaning of s. 10 of the Act. If this were the position it could be said that he would be exercising judicial powers which are not properly the function of the executive power of the State.
It is perfectly true that the section authorises and entitles the Minister to look at the documents by virtue of s. 26, sub-s. 3 and form an opinion. He is also entitled under s. 26, sub-s. 4 to form an opinion that the case is one in which extradition is prohibited. An analogy could perhaps be drawn regarding the position of the Director of Public Prosecutions with regard to crimes in general. He can and should consider all information before him in arriving at a decision whether or not to institute a prosecution.
The Act does not require the Minister to be “satisfied” and this is in stark contrast to the specific requirement in s. 29 of the Act that the District Justice must be satisfied of the matters therein referred to before a committal order can be made.
The arguments advanced on behalf of the prosecutor under this heading are accordingly rejected by this court.
C. Dual Criminality
It might be thought that arguments challenging the validity of certain provisions in Part II of the Act having regard to the Constitution should be dealt with in priority to the matters with which I now propose to deal. My reason for the sequence adopted is that some of the matters to be dealt with now are relevant to some of the arguments under the Constitution.
Section 10, sub-s. 1 of the Extradition Act, 1965, provides as follows:
“Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and a sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed.”
Sub-section 2 of the section might have authorised the District Justice to make committal orders in respect of the two warrants which she excluded but I do not consider it necessary to deal with this matter. Section 10, sub-s. 3 provides that “In this section references to an offence punishable under the laws of the State shall be construed as including references to an act which, if it had been committed in the State, would constitute such an offence.”
It should be pointed out that the scheme of extradition under Part II of the Act differs from the scheme under Part III which applies to contiguous jurisdictions. Under Part III a warrant issued by a judicial authority in the requesting jurisdiction is endorsed by the Commissioner (or Deputy Assistant Commissioner) of the Garda Síochána for execution by any member of the Garda Síochána in any part of the State. No actual proof of foreign law is required. Under Part II, however, foreign law must be proved and in the present case it was sought to be proved by the affidavit of Peter John Welch, a Senior Legal Officer in Australia with high qualifications. It was argued that Mr. Welch’s affidavit should not have been received in evidence in the District Court as the State had failed to make him available for cross-examination. It was conceded, however, that the request on behalf of the prosecutor that Mr. Welch should be available for cross-examination was made at a time so close to the hearing as to make it quite impracticable to procure his attendance. His superior, Mr. Wolfring, was actually present at the hearing and was cross-examined. I am satisfied that there was no serious insistence on the request for the availability of Mr. Welch and that there was no denial of legal or natural justice in this regard.
Part II also differs from Part III in that there are different punishment requirements in relation to the test of extraditability but these differences need not be dealt with here. There are also other differences not relevant to the issues in this case but attention must be drawn to the provision in Part III that the District Court shall not make a delivery order under s. 47 of the Act if it appears to the court that the offence specified in the warrant does not “correspond” with any offence under the law of the State. This is in contrast to s. 10 which provides that extradition shall be granted only in respect of an offence which “is” punishable under the laws of the requesting country and the State. My own view is that the distinction is of little, if any, significance.
The court was addressed at some length on the degree of control vested in the Minister under Part II of the Act and there is no doubt but that his powers are considerable. It is his order under s. 26 which launches the proceedings before the District Justice or he may simply decide to make no order. He may cancel provisional warrants. Even when committal orders are made by the District Justice under s. 29 there is no absolute duty on the Minister to direct that the committed person be surrendered to the requesting country. Other examples of his powers were illustrated. It must again be emphasised, however, that the District Justice is not the “rubber stamp” of the Minister. No ultimate surrender is ever possible under Part II without there being a hearing under s. 29 as a result of which the District Justice is”satisfied” of the matters referred to in the section.
It was argued that the order of the Minister under s. 26 and the order of the District Justice under s. 29 should specify the precise offences of which the “wanted” person would have been guilty if the foreign offence alleged to have been committed by him had been committed in this country. The authority cited in support of this proposition was a decision of the House of Lords in In re Nielsen [1984] A.C. 606. The relevant passage from the judgment of Lord Diplock is at p. 87 where he states:
“Under the principal treaty, the documents accompanying the requisition for the surrender of a fugitive criminal in an accusation case will state the ‘acts’ on account of which the fugitive is demanded by the Danish Government. It is for the Secretary of State to make up his mind what crimes those acts would have amounted to according to the English law in force at the time they were committed if they had been committed in England. In the instant case, this meant identifying the offences which those acts would have amounted to under the relevant criminal statute in force in England at the relevant date (viz. in the instant case the Theft Act 1968) had they been done by Nielsen in England. This was what the Secretary of State did in the Orders to proceed, to which I have previously referred.”
This was a decision under the Extradition Act, 1870, and Lord Diplock was obviously influenced to some extent by the forms authorised by the Act. At an earlier part of p. 87 he states:
“Important too are the forms set out in Schedule 2 to the 1870 Act the use of which, or of forms as near thereto as circumstances admit, is authorised by section 20 of the Act. The form of Order to proceed issued by the Secretary of State to the police magistrate pursuant to section 7 contains a space in which the Secretary of State specifies the crime (which, ex hypothesi, for the list so requires, must be described in terms of a crime according to the laws of England) as being the crime for which the magistrate is required to issue his warrant for the apprehension of the fugitive criminal under section 8.” He proceeds to refer to other relevant forms.
The Act of 1965 does not contain any schedule of extraditable crimes nor does it contain any schedule of forms. There are no specific provisions requiring that the order of the Minister under s. 26 or the order of District Justice under s. 29 should specify the precise offences of which the person named would have been guilty if the alleged acts had been committed in Ireland. It might perhaps be desirable that there should be such provisions but I cannot read them into the Act when they are not there.
I take the view, therefore, that it is sufficient if the alleged acts, in fact, would constitute offences under the laws of Ireland within the ambit of s. 10 if they had been committed here. The parties seemed to accept that the Statements of Offence as required by s. 25 (b) of the Act should describe the conduct of the fugitive complained of in the requesting State. It is not sufficient that the Statements of Offence should recite the offence as defined by the law of the requesting State where the words are used or capable of being used in a legal connotation in that State. The court may not supplement or interpret words used to define a crime in the foreign law by reference to the legal provisions in that State. Foreign law cannot be proved by putting the law or part of the law of that State before the court without the statement of an expert witness to evaluate or interpret it. I accept the argument that the Statements of Offence should tell us what the fugitive did in ordinary language so that one could say “If he did that here, it would be punishable under the laws of this State.”
I now come to deal with the Statements of Offence relied upon in this case. They are contained in exhibit “C” of the affidavit of Peter John Welch. His competence to speak on matters of Australian law is not questioned and I am fully satisfied that the relevant criminality of each alleged offence had been proved. In this context I mean criminality under the laws of Australia. In order, however, to establish the relevant criminality under the laws of Ireland the Particulars of Offence therein contained must be examined. It is unfortunate that the pagination and enumeration of the offences does not correspond with the warrants but I find no difference of the slightest significance between the wording in the Particulars of Offence and the wording of the warrants. Furthermore, the orders of the District Justice refer to the warrants and are marked with the same letters and numbers. For convenience, therefore, I will refer to the warrants when dealing with this aspect of the case.
I am satisfied that the decisions under Part III of the Act of 1965 are relevant to the task in hand. The State (Furlong) v. Kelly [1971] I.R. 132 is a case where the English warrant specified that the prosecutor did “steal” a machine contrary to s. 9 of the Theft Act, 1968, (a statute which did not apply in Ireland). Ó Dálaigh C.J. embarked on an analysis of the text of the English law and came to the conclusion that “stealing” within the meaning of the Theft Act, 1968, would not necessarily correspond with larceny in Ireland. Walsh J. did not enter into any examination of the Theft Act in England (and subsequent decisions of the Supreme Court confirm that he was correct in not doing so). He found, however, that the material set out in the warrant was insufficient notwithstanding the presence of the word”steal”. He stated at p. 144 that “the word cannot be divorced from the reference to section 9 of the English Act of 1968. If it were sought to show that this corresponded, for example, to simple larceny under our law, then either the Statement of Offence in the warrant or the accompanying appropriate evidence should inform the District Justice that the prosecutor is accused of taking an object without the consent of the owner fraudulently and without a claim of right made in good faith and carrying away the object in question with the intention of permanently depriving the owner of that object.” The majority of the Court held that the correspondence had not been established.
Probably as a result of the words of Walsh J. there came into vogue what became known as the “dressed-up warrant”. The words used in the warrant in Wyatt v. McLoughlin [1974] I.R. 378 were clearly drafted to follow verbatim what the learned judge had said in Furlong’s Case [1971] I.R. 132 that it should contain. At p. 398 of Wyatt’s Case Walsh J. stated as follows:
“. . . it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though that same name may be used in this country as the name of a crime, because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them. For example, what constitutes embezzlement in one country may be larceny in another, and acts which would constitute the offence of abortion or unlawful homosexual behaviour in one country may not constitute any offence in the other.”
In Wilson v. Sheehan [1979] I.R. 423 the Supreme Court held (in reference to Part III of the Act) that the requirement for extradition is satisfied when correspondence is shown between the specified offence andany offence which either is an indictable offence or is punishable on summary conviction with a maximum term of at least six months’ imprisonment. At p. 429 Henchy J. stated as follows:
“When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special signification.”
The particular warrant alleged that the plaintiff “on the 14th day of February, 1974, did rob Michael Barker of £281 in cash and immediately before doing so used force, to wit, personal violence, on the said Michael Barker.” In a separate entry in a separate part of the warrant, the offence was said to be contrary to s. 8 of the Theft Act, 1968. The Court considered that the words “rob” and “force” and “personal violence” had ordinary or colloquial meanings
I consider Wilson v. Sheehan [1979] I.R. 432 to be sufficient authority to have entitled the District Justice to be satisfied that the particulars in warrants “A9” to “A15” (inclusive) and “A18” were adequate. They allege that he “did murder” the persons named or that he “did conspire to murder” the persons named.
I consider the particulars in warrant “A1” to be hopelessly inadequate. The conduct alleged is that “Robert Trimbole did conspire with Morris John Caplan and divers other persons to commit offences against a law of the Commonwealth namely offences of forgery contrary to Section 67 of the Crimes Act 1914.” Apart from other possible objections with which I need not deal, the particulars do not tell us in ordinary language (or indeed in any language) what he is supposed to have done. So far from being a “dressed-up warrant” this one is practically naked.
Warrant “A2” appears to me to be perfectly adequate and not vitiated by the inclusion of the words “prohibited imports to which Section 233B of the Customs Act 1901 applied.” It is a charge of conspiring to import into Australia narcotic goods consisting of heroin. It has been conceded that the court in this context is entitled to consider the criminality of conspiring to import narcotics consisting of heroin into Ireland. The importation of heroin is clearly an offence (s. 21, sub-s. 2 of the Misuse of Drugs Act, 1977, and Misuse of Drugs Regulations 1979, S.I. No. 32 of 1979 (article 4, para. 1 (c) and schedule 2). The fact that the charge is one of conspiracy does not affect its relevant criminality.
Warrant “A6” is similarly (if not identically) adequate (article 4, para. 1 (b) of the 1979 Regulations). Warrants “A4” and “A5” are more difficult to assess. The conduct alleged in each is that Robert Trimbole was “knowingly concerned” in the importation into Australia of narcotic goods consisting of a quantity of heroin. Under s. 21, sub-s. 1 of the Misuse of Drugs Act, 1977, a person who “aids, abets, counsels or procures” the commission of an offence under the Act is guilty of an offence. The text of the foreign law (see exhibit “C” p. 18) is that any person who “aids, abets, counsels or procures, or is in any way knowingly concerned in the importation etc.” shall be guilty of an offence. This means that the words “knowingly concerned” provide an alternative criminality in Australia not specifically specified in the Irish Act. This leads me to the conclusion that people speaking the same language as we speak in Ireland take the view that the words “knowingly concerned”would not be understood to be included in the meaning of aiding, abetting, counselling or procuring. I agree with their view and as the only words used in the particulars of offence are “knowingly concerned” I must hold that warrants “A4” and “A5” are inadequate.
The remaining warrants are “A7” and “A8”, which allege that Robert Trimbole did conspire with others “to procure by the making of false and misleading representations the issue of certain Australian Passports.” I am
satisfied that this means a conspiracy to produce a public mischief: R. v.Brailsford [1905] 2 K.B. 730; even though it was argued that it is not an offence in Irish law to procure by false representations the issue of an”Australian Passport”. In my view, it is an offence and the particulars are adequate.
In the end result, I hold that the learned District Justice was correct in being satisfied that adequate particulars were disclosed by warrants “A2″,”A6”, “A7”, “A8”, “A9”, “A10”, “A11”, “A12”, “A13”, “A14”, “A15″and “A18”.
D. Constitutional challenge to the validity of Part II of the Act
I mean no disrespect to counsel who addressed the court on this aspect of the case when I say that most of the arguments consisted of criticisms of the Act and did not disclose basic reasons for a finding of repugnancy. Most of the arguments were unsupported by authority. I was strongly tempted by Mr. Liston’s suggestion that the arguments did not require any answer and, this being a 1965 statute, the presumption of constitutionality was sufficient answer to the arguments advanced. I take the view, however, that I should deal specifically with some of the arguments which were more fully developed.
I have already held that the Government order dated 26th October, 1984, was intra vires but its validity is also challenged having regard to Article 29, s. 5, sub-s. 2 of the Constitution which provides that “the State shall not be bound by any international agreement involving a charge on public funds unless the terms of the agreement have been approved by Dáil Éireann .” I am not satisfied that there was an “international agreement”.Section 8, sub-s. 1 of the Act provides that the Government may by order apply Part II in relation to another country. The application may be effected in either of two ways: (i) where an “international agreement or convention”has been made or (ii) where the Government are satisfied that “reciprocal facilities” will be afforded by the other country. The order is clearly expressed to have been made as a result of the Government’s satisfaction that “reciprocal facilities” would be afforded by the Commonwealth of Australia and not on the basis of any “international agreement or convention.”Even if there was an international agreement I am not satisfied that it involves a “charge” on public funds. The mere fact that expense has been or will be incurred does not necessarily constitute a “charge”.
It was also argued that the order was made specifically for the purpose of leading to the extradition of the prosecutor but, even if this be so, it is not proof of inequality or discrimination as the application of Part II affects all persons who are “wanted” in Australia for extraditable offences.
I will not deal specifically with any other challenges. Apart from their inherent frailty many of them ought not to have been advanced at all having regard to the decision of the Supreme Court in Cahill v. Sutton [1980] I.R. 269. All arguments under this heading are accordingly rejected.
E. The detention of the prosecutor
It need hardly be emphasised that in considering the legality of the detention of the prosecutor his guilt or innocence in respect of the charges against him is totally irrelevant. The offences for which he is wanted in Australia could hardly be more serious but the same legal principles would be applicable to an Irish citizen who was wanted in Australia for an offence of simple larceny. The fact that he may be a citizen of Australia does not deprive the prosecutor of his right to basic fairness of procedures: The State (McFadden) v. Governor of Mountjoy Prison [1984] I.L.R.M. 113. In The People (A.G.) v. O’Brien [1965] I.R. 142 it was held that where evidence has been obtained by the State as a result of a deliberate and conscious violation of a constitutional right it should be excluded save where there are”extraordinary excusing circumstances” which may warrant its admission. The same principle was also emphasised by the Court of Criminal Appeal in The People v. Madden [1977] I.R. 336. The same principle was again repeated by the Supreme Court in The People v. Lynch [1982] I.R. 64 wherein O’Higgins C.J. stated at p. 79 that “once the Constitution had been violated for the purpose of securing a confession, the fruits of that violation must be excluded from evidence on that ground alone.” In D.P.P. v. Joyce [1985] I.L.R.M. 206 Hederman J. in delivering the unanimous judgment of the Supreme Court stated that once the evidence on which the Gardaí relied for the purpose of arresting the accused was improperly obtained it “tainted with illegality everything that the Gardaí did thereafter including arresting the accused.”
In my view the principle is not solely confined to the admission of evidence in a criminal case. Courts have no higher duty to perform than that involving the protection of constitutional rights and if at any time the protection of these rights should delay, or even defeat the ends of justice in the particular case, it is better for the public good that this should happen rather than that constitutional rights should be nullified. In The State (Quinn) v. Ryan [1965] I.R. 70 Ó Dálaigh C.J. stated at p. 122 that “it was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that those rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”
I have already held that the original arrest of the prosecutor on the 25th October, 1984, under s. 30 of the Offences Against the State Act, 1939, was made without there being any genuine suspicion that he had committed the alleged scheduled offence. Part II of the Extradition Act, 1965, did not apply to Australia until, at the earliest, 1.15 p.m. on the 26th October, 1984. The provisional warrant of arrest in pursuance of s. 27 of the Act issued at approximately 6 p.m. on the 26th October, 1984. It is exhibit “B” in the affidavit of the prosecutor and it will be noted at the end that there is in manuscript a direction by Superintendent Herlihy in the following terms:”To Detective Inspector Cormac Gordon for legal execution.” At the subsequent hearing before me that night Detective Inspector Gordon swore on oath that at no time from the time of arresting the prosecutor on the 25th October, 1984, under the name Michael Hanbury up to the time of giving evidence before me between the hours of 7.00 p.m. – 10.00 p.m. on the 26th October, 1984, did he believe the prosecutor to be any person other than Michael Hanbury. I did not accept his evidence.
It might be possible to theorise in this matter but the only rational explanation for the s. 30 arrest on the 25th October, 1984, was to ensure that the prosecutor would be available for arrest and detention when Part II of the Act of 1965 would apply to the Commonwealth of Australia. There was a gross misuse of s. 30 which amounted to a conscious and deliberate violation of constitutional rights. There were no extraordinary excusing circumstances.
It was suggested that even if there was such a violation, no “fruits” (to use the words of O’Higgins C.J. in The People v. Lynch [1982] I.R. 64) resulted therefrom. Reliance in this regard was placed on paragraph 5 of the affidavit of the prosecutor, in which he stated that “On the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay.” It was argued that he would, therefore, have been available for arrest on the 26th October, 1984, or thereafter, even if he had not been in unlawful detention from the 25th October, 1984. It would be idle speculation for me to make any such assumption.
It was further argued that in the application before me on the 2nd November, 1984, I had declared his detention to be lawful but the only arguments made to me on that date were to the effect that certain remand orders were deficient in that they only amounted to recitals. This problem was dealt with, however, in Application of Woods [1970] I.R. 154 where Walsh J. stated at p. 167 as follows:
“In my view it was never contemplated by the Constitution that the dismissal of such an application for habeas corpus precluded for all time any further application being made in respect of the same detention of the same person. Information might subsequently come to light which would be sufficient to satisfy any court of the illegality of the detention. Even if it were the fact that such information could have been obtained at the time of the original application, in my opinion it would not alter the situation. It would be quite impossible and unreal for any court hearing such an application to extend the enquiries, which it must make upon such an application, to every conceivable matter which might possibly arise although not then raised by any person or, indeed, occurring to any person.”
Persuasive English and other authorities were cited but I need not refer to them save to say that they establish that the relevant courts should exercise their discretion in favour of a person who may have been adversely affected by a gross abuse of legal process.
The present detention of the prosecutor is tainted by the illegality of his original arrest. It is the ultimate result of a conscious and deliberate violation of constitutional rights and is, accordingly, unlawful. I must, therefore, order his immediate release.
[Application for a stay on the order was refused by Egan J. Upon immediate appeal from the refusal the Supreme Court granted a stay until decision upon hearing next day. (The prosecutor was at the time in intensive care at the Meath Hospital, Dublin.)]

 

Finlay C.J.
6th February 1985

I am satisfied that the provisions of Article 40 which set out the procedure for an inquiry of this kind and which provide that unless the High Court is clearly satisfied that the prosecutor is being legally detained, it must order his immediate release, that this procedure was complied with by Egan J. As a result Trimbole was in law released from custody. Whilst it is persuasive to say that any ordinary appellate jurisdiction includes any powers to make it effective, so to constitute that power to order a stay in this case would be inconsistent with the Constitution. I am satisfied from the report of The State (Browne) v. Feran [1967] I.R. 147 that the power of this Court to make an order for re-arrest clearly must be confined to a time when this Court has decided that the High Court decision is incorrect. There is no question of this Court ordering rearrest to allow the Court to decide an issue.

Walsh J.
I agree.

Henchy J.
I agree.

Hederman J.
I agree.

McCarthy J.
I agree.

 

Finlay C.J.
26th March 1985

This is an appeal brought by the respondent, the Governor of Mountjoy Prison, against an order made by Egan J. in the High Court on the 5th February, 1985, pursuant to an enquiry held by him under Article 40, s. 4, sub-s. 2 of the Constitution, directing that the prosecutor, Robert Trimbole, should be forthwith released from detention.
The Facts
The material facts which are not in dispute may thus be summarised.
1. The prosecutor, who is not a citizen, and has not got a permanent place of residence in Ireland, was at approximately 2 p.m. on the 25th October, 1984, arrested on the outskirts of Dublin by Detective Inspector Cormac Gordon in purported pursuance of s. 30 of the Offences Against the State Act, 1939, and brought into detention in the Bridewell Garda Station, Dublin. He was there detained and shortly after noon on the 26th October, 1984, was served with an order made by a Chief Superintendent of the Garda Síochána extending the period of his detention for a further twenty-four hours.
2. At approximately 3 p.m. on the 26th October an application was made on behalf of the prosecutor to Egan J. for an enquiry as to the legality of his detention and the prosecutor was brought before Egan J. at 7 p.m. on the same date and an enquiry then was had as to the legality of his detention.
The judge having heard evidence and submissions rejected the evidence of Inspector Gordon which was to the effect that he had formed a suspicion prior to the arrest that the prosecutor had been in possession of a firearm and ammunition on the 24th October, 1984, and held that no genuine suspicion could have been formed by the Gardaí in relation to the possession by the prosecutor of any firearm or ammunition. He accordingly decided that the detention of the prosecutor was illegal and made an order for his immediate release. The prosecutor was then released from custody in the Four Courts.
3. At approximately 1.15 p.m. on the 26th October the Government made an order, pursuant to Part II of the Extradition Act, 1965, applying that part of the Act to the Commonwealth of Australia as and from the date of the making of that order. Prior to the making of that order no extradition treaty existed between the Commonwealth of Australia and the State nor was Part II of the Act of 1965 applicable to the Commonwealth of Australia.
4. At 6 p.m. on the 26th October, 1984, District Justice Ballagh issued a provisional warrant, pursuant to s. 27 of the Act of 1965, authorising the arrest and detention of the prosecutor on a number of charges relating to offences alleged to have been committed in the Commonwealth of Australia. Such a warrant can not, of course, be issued unless and until Part II of the Act of 1965 applies to the country requesting the surrender of the person named therein.
The prosecutor was arrested by Detective Inspector Gordon pursuant to that warrant immediately after his discharge and release by Egan J. outside the precincts of the Four Courts. Subsequent to that arrest he was brought before the District Court and remanded in custody from time to time.
5. On the 2nd November, 1984, application was made for an enquiry as to the legality of his detention before Egan J., the grounds of illegality asserted being deficiency in the form of orders of remand in custody which had been made from time to time between the 26th October and the 2nd November by the District Court pursuant to the provisional warrant. After enquiry Egan J. rejected the submissions of illegality on these grounds.
6. On the 4th November, 1984, this application was made to Egan J. pursuant to Article 40 of the Constitution for an enquiry as to the legality of the detention of the prosecutor and an order was then made in accordance with the Article directing the respondent, the Governor of Mountjoy Prison, to produce the body of the prosecutor before the High Court on Tuesday, 11th December, 1984, or on a later date to be agreed between the parties and to certify in writing the grounds of his detention.
7. On the 8th November, 1984, the Minister for Justice made an order of signification to the District Court, pursuant to the provisions of s. 26 of the Act of 1965, of the request duly made by the Commonwealth of Australia and received by him in accordance with Part II of the Act of 1965.
8. Application was made on the 17th November, 1984, to the District Court for orders committing the prosecutor to prison, there to await the order of the Minister for his extradition. After a number of adjournments and hearings orders were made by the District Court on the 21st November, 1984, committing the prosecutor to be detained in Mountjoy Prison until the Minister should otherwise order, in accordance with Part II of the 1965 Act, or until the High Court or Supreme Court should order his release. These orders referred to sixteen Australian warrants.
9. The return to the order by the High Court on the 4th November, 1984, was in fact made on the 18th December, 1984, and this application was then at hearing for a considerable number of days before Egan J. He reserved judgment and gave judgment in the case on the 5th February, 1985, directing the release of the prosecutor.
10. For reasons associated with his physical health the prosecutor was not in court at the time of the making of the order by Egan J. and was not, therefore, immediately released. Application was then made on behalf of the respondent for a stay on the order of release but this Court ruled that having regard to the express obligation imposed by Article 40, s. 4, sub-s. 2 upon the High Court, unless satisfied as to the legality of the detention of a person seeking an enquiry under that Article to order his release, that it would be inconsistent with the Constitution for this Court to exercise any right to stay such an order and, therefore, refused the application and the prosecutor was then released from custody.
The issues on this appeal
The respondent did not appeal against the order made by Egan J. on the 26th October, 1984, nor against his conclusion on the hearing of that enquiry that there was no genuine suspicion which would justify the purported arrest of the prosecutor under s. 30 of the Offences Against the State Act, 1939. In the course of the hearing of this application before the High Court the prosecutor advanced a number of grounds arising from the provisions of the Act of 1965 challenging the validity of the warrants issued and the orders made by the District Court under that Act. All these submissions were rejected by the learned trial judge and against that rejection no cross-appeal has been entered to this Court by the prosecutor. The grounds on which the learned trial judge ordered the release of the prosecutor were that the illegality of the original arrest of the prosecutor which purported to be under s. 30 of the Offences Against the State Act, 1939, had tainted the entire of the subsequent proceedings before the District Court and he must, therefore, in his discretion release the prosecutor. It is against that finding and that decision that this appeal has been brought.
Apart from legal submissions as to the consequences of the illegality of the original arrest the respondent relies in particular on paragraph 5 of the affidavit of the prosecutor in which it is stated:
“On the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay. On the outskirts of Dublin all three of us were arrested by Inspector Cormac Gordon of An Garda Síochána in purported exercise of his powers under section 30 of the Offences Against the State Act 1939. We were conveyed by Garda car to the Bridewell Garda Station.”
The law
In the course of his judgment on this application the learned trial judge held that the purported arrest of the prosecutor on the 25th October, 1984, was a conscious and deliberate violation of his constitutional rights and there has been no appeal against that finding. The consequence of and the attitude of the courts to a conscious and deliberate violation of constitutional rights has been laid down in a number of cases. In The State (Quinn) v. Ryan [1965] I.R. 70, which was concerned with the detention and deportation of a person in such a manner as to prevent him having access to the court for the purpose of initiating an enquiry as to the legality of his detention under Article 40 of the Constitution, Ó Dálaigh C.J. in a judgment with which the other members of this Court agreed, at p. 122, stated as follows:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly.”
In The People (Attorney General) v. O’Brien [1965] I.R. 142 this Court was dealing with a case in which, through inadvertence, though not, on the findings, through any conscious or deliberate act, an unlawful search of the defendant’s dwellinghouse was made. In the course of his judgment, at p. 170, Walsh J. stated as follows:
“The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril.”
The violation of constitutional rights and its consequence arose again in The People v. Madden [1977] I.R. 336 where the facts were that the accused Madden was in the course of making what the court of trial held to be a voluntary statement when the maximum period of his detention, which had commenced lawfully as an arrested person under s. 30 of the Act of 1939, expired, but he was not then released but rather permitted to conclude the statement. Delivering the judgment of the Court of Criminal Appeal, O’Higgins C.J. at p. 347 stated as follows:
“The court of trial appears to have sought an element of wilfulness or mala fides in the conduct of the Garda officer and not finding such to have concluded that the deprivation of constitutional rights was not deliberate and conscious. In the view of the Court, to adopt that approach is to misunderstand the decision in O’Brien’s Case and, accordingly, to err in law. What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of the due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right. This lack of regard for and failure to vindicate the defendant’s constitutional right to liberty may not have induced or brought about the making of this statement but it was the dominating circumstance surrounding its making. In the view of this Court this fact cannot be ignored.”
The decision of the Court of Criminal Appeal then was that the statement must be excluded and by reason of its exclusion the conviction of the accused, Madden, was set aside. In The People v. Lynch [1982] I.R. 64 this question arose again in this Court in respect of the admission of an incriminating statement made by the accused. In the course of his judgment O’Higgins C.J. quoted with approval the statement of Warren C.J. in the case of Terry v. Ohio (1968) 392 U.S. 1 where, at p. 13 of the report he said:
‘Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.”
I am satisfied that from these decisions certain general principles can be deduced. They are:
The Courts have not only an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights; (ii) if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded; and (iii) to ensure as far as possible that persons acting on behalf of the Executive who consciously and deliberately violate the constitutional right of citizens do not for themselves or their superiors obtain the planned results of that invasion.
Notwithstanding the fact, therefore, that of the four cases to which I have referred, three are concerned with the admissibility of evidence in criminal trials and the fourth was concerned with the punishment of persons acting in breach of the Constitution where neither protection nor reparation to the party injured was practical, I am satisfied that this principle of our law is of wider application than merely to either the question of the admissibility of evidence or to the question of the punishment of persons for contempt of court by unconstitutional action.
This jurisdiction and direct duty arising from the Constitution and the position of the courts created by it is in some ways similar to, though more ample and dominant than, what I am satisfied was an inherent jurisdiction recognised by the common law in courts to prevent an abuse of their own processes.
In the case of R. v. Bow Street Magistrates, ex parte Mackeson (1981) 75 Cr. App. R. 24, the question of this inherent jurisdiction arose on an application for an order of prohibition to prevent the trial of the applicant on certain charges in the Bow Street Magistrates’ Court. The facts of that case shortly summarised were that the applicant, who was a British citizen, was in the year 1979 wanted by the Metropolitan Police in respect of certain charges of fraud. He was at that time resident in Rhodesia which in the eyes of the law of England was then in rebellion and, accordingly, previously existing statutory arrangements for extradition were no longer effective between the two countries. It was found as a fact that the English police upon that occurring entered into arrangements whereby the Rhodesian authorities would deport the applicant to England, not for the purposes for which the deportation laws of Rhodesia provided, namely, that he was an undesirable resident, but really for the purpose of securing an illegal form of extradition so as to make him amenable to the courts of England. The process thus initiated in fact was not completed until after the restoration, in the eyes of English law, of the Rhodesian state and after pre-existing statutory arrangements for extradition had again become effective. Upon arrival in England in the custody of Rhodesian police officers he was immediately arrested on the three charges of fraud on which he was originally wanted and brought before a magistrates’ court. These charges were eventually dropped but sixteen further charges of fraud were preferred against him and it was the trial of those charges which the applicant sought to prohibit. The decision of the Court of Appeal, consisting of Lord Lane C.J. and Davies J. was that whilst undoubtedly the magistrates’ court had jurisdiction to hear and determine the charges which had properly been laid against the applicant, the court had an inherent jurisdiction to prevent an abuse of its own process and that since the applicant had only been present in England and capable of being charged before the magistrates by reason of an illegal action in which the English police had co-operated, the court should exercise its discretion and prohibit the trial of the applicant on the charges notwithstanding the fact that they were charges properly brought before the magistrates’ court which had jurisdiction to hear them.
In the course of his judgment Lord Lane C.J. quoted with approval from the decision of the New Zealand Court of Appeal in R. v. Hartley [1978] 2 N.Z.L.R. 199. In this case a man wanted for murder and associated crimes in New Zealand had before being arrested left for Australia. He was after a short time arrested by the Australian police with the connivance and at the request of the New Zealand police and transferred by plane to New Zealand where he was on arrival immediately arrested and charged with the murder. There existed a straightforward extradition arrangement between Australia and New Zealand which was ignored and not availed of. It was there decided that on the authorities the court of trial which tried the accused and found him guilty had clear jurisdiction to do so but the Court of Appeal held that there was an inherent jurisdiction in the courts to exercise a discretion by reason of the illegality of the method of his being made available in New Zealand for arrest and charge, to direct the discharge of the accused. In particular Lord Lane quoted from the decision of Woodhouse J. where he states at p. 217:
“We have said that if the issue in the present case is to be considered merely in terms of jurisdiction then Bennett, being in New Zealand, could certainly be brought to trial and dealt with by the courts of this country. But we are equally satisfied that the means which were adopted to make that trial possible are so much at variance with the statute, and so much in conflict with one of the most important principles of the rule of law, that if application had been made at the trial on this ground, after the facts had been established by the evidence on the voir dire, the Judge would probably have been justified in exercising his discretion under section 347 (3) or under the inherent jurisdiction to direct that the accused be discharged.”
The Court of Appeal in fact set aside the conviction of the accused on the grounds of the inadmissibility of statements taken from him by oppressive methods after his return to New Zealand, but as is commented by Lord Lane C.J., it is plain what would have happened if the issue of discretion had been the only issue before the Court.
Having regard to the discretion thus arising at common law and the duty of the court to intervene in appropriate cases under our Constitution it is necessary to look at the position of the prosecutor in this case. On the evidence in the High Court he is not a person who is suspected of or wanted for any offence against the law of this country. The section under which his original purported arrest took place is part of a code intended to protect the State against its enemies and those seeking to overthrow it by unlawful means. Not only did the prosecutor not come within that category of persons but the only right which the State would have had to interfere with his liberty would be under the Extradition Act, 1965, at the request of another country with which the State had reciprocal extradition arrangements. His purported arrest under s. 30 at the time at which it took place when no such arrangements existed was therefore not only a conscious and deliberate violation of his constitutional rights but a flagrant misuse of s. 30 of the Offences Against the State Act, 1939.
It is clear that not every unlawful arrest, even though it may be classified as conscious and deliberate, gives to a person so arrested, after his necessary release from illegal detention, any immunity from the proper enforcement of due processes of law or makes him unamenable to answer to criminal offences in our courts.
It is equally clear that a person wanted for extradition in this country as the result of a valid request for extradition under lawful treaty or reciprocal arrangements could not by reason only of the fact that he was subjected in the first instance to an unlawful arrest gain any long-term or permanent immunity from extradition.
The finding of the learned trial judge in this case, however, is of quite a different situation and is, in effect, a finding, that the unlawful arrest was part and parcel of a planned operation prompted by delay in bringing into operation the reciprocal extradition agreements, and therefore the application of the Act of 1965 as between Australia and Ireland. Dealing with this matter Egan J. stated as follows:
“It might be possible to theorise in this matter but the only rational explanation for the s. 30 arrest on the 25th October, 1984, was to ensure that the prosecutor would be available for arrest and detention when Part II of the Act of 1965 would apply to the Commonwealth of Australia. There was a gross misuse of s. 30 which amounted to a conscious and deliberate violation of his constitutional rights. There were no extraordinary excusing circumstances.
It was suggested that even if there was such a violation, no ‘fruits’ (to use the words of O’Higgins C.J. in The People v. Lynch [1982] I.R. 64) resulted therefrom. Reliance in this regard was placed on paragraph 5 of the affidavit of the prosecutor, in which he stated that ‘on the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay.’ It was argued that he would, therefore, have been available for arrest on the 26th October, 1984, or thereafter, even if he had not been in unlawful detention from the 25th October, 1984. It would be idle speculation for me to make any such assumption.”
The findings of fact here made by the learned trial judge and the inferences he drew from them are, in my view, well established. On the evidence before him he was entitled to find that the unlawful s. 30 arrest was a precaution purposely put in operation so as to try and avoid the possibility that the prosecutor would leave the jurisdiction or otherwise become unavailable for arrest before the application of Part II of the Act of 1965 to Australia and the issue of a provisional warrant under section 27. Looked at simply and directly, it was a plan which exactly achieved its purpose. At the time when the provisional warrant under s. 27 did issue, namely, at 6 p.m. on the 26th October, 1984, the prosecutor was still in detention and those charged with the duty of executing the warrant knew that either he would still be in such detention at the end of that day by reason of the refusal of his application under Article 40 of the Constitution or that he would be discharged from detention in the Four Courts as a result of a successful application under Article 40 and would be immediately available for the execution of the warrant in an identifiable and predictable place in the centre of the city of Dublin.
I would reject the submission that the averment contained in the affidavit of the prosecutor, that it was his intention at 2 p.m. on the previous day to travel to and remain in the West of Ireland, is inconsistent with the link found by the learned trial judge between the unlawful arrest and the facile execution of the warrant under s. 27 of the Act of 1965. One must infer from the evidence and from the findings of the learned trial judge that the Garda authorities were apprehensive that between lunchtime on the 25th October and the time when a warrant would be available on the following day, whether by reason of hearing of the moves which were being made in Australia to try to secure the extradition of the prosecutor to that country, or for any other reason, the prosecutor would change what he stated to be his intention and would depart out of the jurisdiction or become unavailable for arrest. Notwithstanding his statement of his intention at that time it seems to me that that possibility still existed and the onus being on the respondent Governor of the Prison to justify the legality of the detention of the prosecutor, the learned trial judge was correct in his findings of fact and in the inferences which he drew from them and that this is a case in which the planned result of the conscious and deliberate violation of the prosecutor’s constitutional rights was his arrest under the warrant issued under s. 27 of the Act of 1965 from which flowed all further lawful orders of detention.
In reaching this conclusion I have considered and rejected the submission made on behalf of the respondent that the illegality of the arrest made under s. 30 on the 25th October, 1984, was merged in or superseded by a series of valid and legal orders for the detention of the prosecutor, made by the District Court when he was brought before them having been arrested on what itself was a valid and legal warrant issued under s. 27 of the Act of 1965.
If the challenge to the legality of the prosecutor’s detention had been based on a want of jurisdiction in the District Court, or if the successful challenge to the original arrest had been one of form creating an illegality but not constituting either a conscious and deliberate violation of his constitutional rights or the abuse of a process of the court, then in those instances, undoubtedly, on the authority of the decisions in Re Brian Francis (1963) 97 I.L.T.R. 160 and in Re Singer (No. 2) (1964) 98 I.L.T.R. 112 the orders of the District Court, having been made within jurisdiction, would justify the detention of the prosecutor irrespective of the method by which he had been brought before that court. I have no doubt, however, that different considerations apply to a challenge arising from the discretion at common law to prevent abuse of the processes of the court and the duty under the Constitution to vindicate the constitutional rights of the prosecutor.
I, therefore, agree with the decision of Egan J. and the reasoning by which he reached it and I would dismiss this appeal.

Henchy J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
The Governor of Mountjoy Prison appeals against an order of the High Court (Egan J.) made on the 5th day of February, 1985, following on an enquiry held under Article 40, s. 4, sub-s. 2 of the Constitution, directing the immediate release of the prosecutor.
On the 25th October, 1984, the prosecutor, an Australian citizen, was travelling by motor car to the West of Ireland accompanied by his daughter and a lady friend, when all three were arrested in purported exercise of the powers of arrest given by s. 30 of the Offences Against the State Act, 1939. The period of detention pursuant to this arrest was subsequently extended from the initial twenty-four hours to one of forty-eight hours by the exercise of further powers granted by the section to a member of an Garda Síochána not below the rank of Chief Superintendent. The arrest took place in the early afternoon of the 25th at which time there was no extradition arrangement existing between Ireland and Australia. By 1.15 p.m., however, on the 26th October, such an arrangement had been brought into existence through the action of the Australian Government and the Irish Government, following on which provisional warrants for the arrest of the prosecutor were issued pursuant to the Extradition Act, 1965. On the evening of the 26th October Egan J. held an enquiry under Article 40, s. 4, sub-s. 2 of the Constitution and ordered the immediate release of the prosecutor. I quote from the judgment of the learned trial judge:
“At the subsequent hearing before me that night Detective Inspector Gordon swore on oath that at no time from the time of arresting the prosecutor on the 25th October, 1984, under the name Michael Hanbury up to the time of giving evidence before me between the hours of 7.00 p.m. – 10.00 p.m. on the 26th October, 1984, did he believe the prosecutor to be any person other than Michael Hanbury. I did not accept his evidence.

It might be possible to theorise in this matter but the only rational explanation for the s. 30 arrest on the 25th October, 1984, was to ensure that the prosecutor would be available for arrest and detention when Part II of the Act of 1965 would apply to the Commonwealth of Australia. There was a gross misuse of s. 30 which amounted to a conscious and deliberate violation of his constitutional rights. There were no extraordinary excusing circumstances.
It was suggested that even if there was such a violation, no ‘fruits’ (to use the words of O’Higgins C.J. in The People v. Lynch [1982] I.R. 64) resulted therefrom. Reliance in this regard was placed on paragraph 5 of the affidavit of the prosecutor in which he stated that “On the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay.” It was argued that he would, therefore, have been available for arrest on the 26th October, 1984 or thereafter, even if he had not been in unlawful detention from the 25th October, 1984. It would be idle speculation for me to make any such assumption.”
I pause in this citation to refer to the submissions made to this Court by Mr. MacEntee on behalf of the prosecutor, which I summarise as follows:(a) The liberty of the individual includes his entitlement to change his mind. (b) The arrest under s. 30 was disposing of the risk that he (the prosecutor) would not be available – that he would change his mind; it took this area of uncertainty out of the case. (c) At the time of the arrest there was no possibility of holding the prosecutor lawfully – it was therefore a form of kidnapping to make him available to face the process that would result from the Government making the order that was made on the 26th October. (d) In short, that an order of release under Article 40, s. 4, sub-s. 2 means to set at liberty in a meaningful sense.
To revert to the words of the learned trial judge:
“Persuasive English and other authorities were cited but I need not refer to them save to say that they establish that the relevant courts should exercise their discretion in favour of a person who may have been adversely affected by a gross abuse of legal process.
The present detention of the prosecutor is tainted by the illegality of his original arrest. It is the ultimate result of a conscious and deliberate violation of constitutional rights and is accordingly unlawful. I must, therefore, order his immediate release.”
Earlier in his judgment, Egan J. had cited an extract from the judgment of Ó Dalaigh C.J. in The State (Quinn) v. Ryan [1965] I.R. 70 at 122:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that those rights should be set at nought or circumvented. The intention was that the rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”
It is in point to cite the concluding sentence of that paragraph of Ó Dalaigh C.J.’s judgment: “anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly.” Quinn’s Case [1965] I.R. 70 was one where the purpose of the police plan was to eliminate the courts and to defeat the rule of law as a factor in government ( Ó Dalaigh C.J. at p. 118). No such purpose is ascribed in the instant appeal where the purpose of the police plan – as, clearly, there was a plan – was to detain the prosecutor until the necessary extradition framework had been constructed. It seems to me to follow, inexorably, that the “plan” or scheme must have involved individuals in other departments of the Executive and not just the Garda officers immediately concerned in the arrest. As far back as 1972 the Irish Government commenced negotiations with representatives of the Government of the Commonwealth of Australia to negotiate the text of an Extradition Treaty between the two countries and according to the affidavit of the Legal Adviser to the Department of Foreign Affairs these negotiations”were not and have not been either abandoned or discontinued and are continuing.” The relevant regulations in Australia were “signed by the Governor General between 10.45 and 11.15 a.m. on the 26th October. That was sometime during the night of 25th October or the early morning of 26th October in Ireland.” (see the judgment of High Court of Australia in Robert Trimbole v. Commonwealth of Australia (1984) C.L.R. 186). At 1.15 p.m. on the 26th October the Government made the Extradition Act, 1965, (Part II) (No. 19) Order, 1984, which order came into operation on the same date and applied Part II of the Act of 1965 to the Commonwealth of Australia. There was, of course, no issue as to any of these events; the validity of the warrants for the arrest of the prosecutor that resulted from the making of the orders has been tested and upheld in the High Court and is not the subject of appeal. It is said, however, that, as it were, the pedigree of these warrants is defective because of what the learned trial judge termed, and in my view, correctly termed, “a gross misuse of s. 30 which amounted to a conscious and deliberate violation of his constitutional rights.” The learned judge further said:
“It need hardly be emphasised that in considering the legality of the detention of the prosecutor his guilt or innocence in respect of the charges against him is totally irrelevant. The offences for which he is wanted in Australia could hardly be more serious but the same legal principles would be applicable to an Irish citizen who was wanted in Australia for an offence of simple larceny. The fact that he may be a citizen of Australia does not deprive the prosecutor of his right to basic fairness of procedures . . .”
For myself, I think it is right to emphasise that guilt or innocence is irrelevant; that the fact that the charges are very grave and very numerous is equally irrelevant; what is most relevant is that the courts should defend the Constitution and the constitutional rights of every person within the jurisdiction of the courts. I refer again to Quinn’s Case [1965] I.R. 70 and to the judgment of Davitt P. in the High Court where, at pp. 88-89, he says in reference to Article 40, s. 4, sub-s. 2 of the Constitution:
“If these provisions had to be considered alone and isolated from the other provisions of the Article it might reasonably be argued that they did no more than re-state some of the provisions of the common law in regard to habeas corpus. They occur, however, in an article dealing with personal rights which, in turn, is contained in a section of the Constitution which deals with fundamental rights. Paragraph 3 provides, in sub-para. 1: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens.” In sub-para. 2 it provides: “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” These guarantees are given on behalf of the State and apply to all its organs. They apply not merely to the Legislature, but also to the Executive and the Judiciary. Not merely are the appropriate laws as enacted to comply with the requirements of these guarantees, but they are, so far as their nature permits, to be interpreted by the Courts and administered and enforced by the Executive with a similar regard to the requirements of the Constitutional guarantees.”
If, then, the Executive itself abuses the process of law as in this case by the wrongful use of s. 30 of the Offences Against the State Act, 1939, and, for what it is worth, persists in that abuse by giving false evidence in the course of the constitutional enquiry, are the courts to turn aside and, apart from administering severe strictures to those concerned, appear to sanction the procedure that has been adopted to secure the extradition of an individual to the requesting State? It is not easy for anyone, particularly those outside the courts, to disassociate legal principles from the facts of any given case; it is important, therefore, to emphasise that the application of such legal principles must be the same for an Australian citizen on a temporary visit to Ireland as they would be for an Irish citizen, permanently resident in Ireland, when either of them is sought by a requesting State with which State Ireland has an extradition treaty or arrangement.
Counsel for the respondent, the Governor of Mountjoy Prison, who detained the prosecutor until his release, whilst acknowledging the impropriety of the arrest under s. 30, seek to uphold the detention, essentially, on the basis that the arrest and order for extradition made on foot of the extradition framework were not “fruits” of the wrongful arrest – that, according to his own affidavit, the prosecutor was not intending to leave Ireland and that the case is, therefore, different from the authorities cited bearing upon the admission in evidence of the “fruits” of improper or unconstitutional conduct by the Executive through the work of the Gardaí. It is true to say that the cases cited are, largely, concerned with “fruits” in that sense but, in my view, the argument overlooks the philosophy that underlies these decisions and, indeed, the many decisions of the Federal Supreme Court of the United States cited so often in such cases as The People (Attorney General) v. O’Brien [1965] I.R. 142 and subsequent cases. In O’Brien’s Case Walsh J. said at p. 168:
“In the United States of America the exclusionary rule, as it is called, does not appear to have been based upon a principle of”fairness” to the prisoner but for the express purpose of enforcing compliance on the part of the police with the constitutional rights of the accused person. This is clear from the many decisions of the Supreme Court of the United States and the latest expression of it is in the judgment of that Court in Stone v. State of California (1964) 376 U.S. 483. It would also appear that at least in cases of illegal search and seizure upon premises, the rule seems to be confined to cases where the violation has been that of the constitutional rights of the defendant . . .
In my judgment the law in this country has been that the evidence in this particular case is not rendered inadmissible so that there is no discretion to rule it out by reason only of the fact that it was obtained by means of an illegal as distinct from an unconstitutional seizure. Members of the police make illegal searches and seizures at their peril and render themselves liable to the law of tort and in many instances also to the criminal law. In my view, it would properly be within the province of a court which learns in the course of a trial that evidence proffered has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial. If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than that the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle.”
Clearly a principle underlying the exclusion of such evidence is the deliberate violation of constitutional rights and not, as in the United States, in part at least a weapon by the courts to deter police illegalities (paceWalsh J. at p. 167 in The People (Attorney General) v. O’Brien [1965] I.R. 142). The exclusionary rule expressed in O’Brien was examined in detail in The People v. Madden [1977] I.R. 336; the People v. O’Loughlin [1979] I.R. 85; the People v. Walsh [1980] I.R. 294; the People v. Farrell [1978] I.R. 13 and the People v. Lynch [1982] I.R. 64, where O’Higgins C.J. said “Once the Constitution has been violated for the purpose of securing a confession, the fruits of that violation must be excluded from evidence on that ground alone.” All these cases, however, are, as I have said, instances of the exclusion of evidence, they do not, of themselves, necessarily involve the release of the person detained. In the instant appeal, a person detained was ordered to be released and was released (in order to avoid publicity at the time, at the request of his counsel, the prosecutor was brought by the Gardaí to the Bridewell Station, accompanied by his junior counsel, and the arrest under the provisional warrant was effected there). Not merely was he released but, before the release was made, indeed before judgment was given by Egan J., counsel for the Governor had publicly stated the intention of the police authorities to arrest him under the provisional warrants.
Therefore, it is said, that the arrest and intended extradition were not fruits of the unlawful arrest under s. 30; if they were, they do not touch upon the real issue viz., whether or not the prosecutor should be returned to Australia to face the charges detailed in the warrants. As in the case of evidence obtained in breach of constitutional rights, is there a discretion to be exercised in the light of the breach of the prosecutor’s constitutional right to liberty where the chain between the deprivation of liberty and the arrest under the provisional warrant cannot be demonstrated to have been cleanly broken? Or, assuming no such break, where the impropriety is, so to speak, spent by the appearance of the prosecutor in the District Court on a number of occasions on remand by order of the District Justice and no question can be raised as to the validity of the extradition procedure and proceedings themselves, is there a duty or a discretion in the court to nullify these proceedings by ordering his release, and if there is a discretion, how should it be exercised? In any sense, is there a question of degree or proportionality appropriate to the issue? This I have found to be the real question to resolve in this appeal.
The balance
1. If a breach of constitutional rights may be excused by extraordinary circumstances ( pace The People (Attorney General) v. O’Brien [1965] I.R. 142) a parallel argument would apply here.
2. In The People v. Shaw [1982] I.R. 1 the excuse, the hope of finding the girl alive, was held an adequate excuse for the violation of a constitutional right, although, in fact, the hope was groundless.
3. The majority judgment (that of Griffin J.) in Shaw [1982] I.R. 1 stated at p. 61:
“The crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it “where it appears to him that public policy, based on a balancing of public interests, requires such exclusion” – per Kingsmill Moore J. at p. 161 of the report of O’Brien’s Case .This is a fairer and more workable test than a consideration of whether the questioned statement complies with specific constitutional provisions, because most of the criminal trials in this State are held in courts (the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel, judicial experience and vested jurisdiction, are not designed for constitutional interpretation or for the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another.”
4. It is clearly in the interests of justice, and, indeed, in the interests of concord with other nations (the Preamble) and friendly co-operation amongst nations founded on international justice and morality (s. 1, sub-s. 1, of Article 29 of the Constitution) and the generally recognised principles of international law (s. 3) that where a friendly state seeks the extradition of a person alleged to have committed a serious crime within that State then this State should co-operate in effecting that extradition. It is self-evident that if such a person refuses or is unwilling to return to the requesting State, then he is seeking to evade a trial – he is seeking to evade justice; to aid him in so doing is, on its face, contrary to public policy.
5. Other than the President, no holder of an office under the Constitution save the members of the Judiciary is required to make a declaration to uphold the Constitution and the laws. There are analogous provisions in the Police Forces Amalgamation Act, 1925, and the Defence Act, 1954. In particular, no member of either House of the Oireachtas or of the Executive at any level is required by the Constitution itself to make such a declaration. This circumstance emphasises, if emphasis were needed, the high responsibility that lies upon the Judiciary to ensure that constitutional rights are not flouted with impunity. The release upon what may appear to have been a technical ground of an individual “wanted” on serious charges may seem, at first sight, undesirable and, indeed, contrary to public policy; it may seem highly contrary to public policy that elaborate arrangements for extradition should be set at nought by what may be termed an excess of zeal. In my judgment, however, a far greater principle is at stake: that part of the Executive represented by the Garda authorities and those others responsible for what I have termed the plan to extradite the prosecutor must not be permitted to think that conduct of this kind will at worst result in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the courts’ creation; they stem from the police illegality.
During the course of argument, the question was canvassed as to whether or not the prosecutor could be validly arrested and extradited upon a fresh warrant or set of warrants from Australia. Mr. MacBride, as his counsel, expressly conceded that such an arrest and extradition would be valid. That is not to say that such arrest and extradition might not be challenged; for myself, however, I would like to make it clear that the views that I have expressed are not to be taken as any indication that the prosecutor is now seven weeks after his release free from extradition from this country.

L v Kennedy

[2010] IEHC 195
Judgment of Mr Justice Michael Peart delivered on the 5th day of May 2010:
Following his arrest in the immediate aftermath of his mother’s death the applicant was remanded from the District Court to Mountjoy Prison in December 1998, but some days later was transferred to the CMH where he remained as a patient until his trial and conviction. The clinical diagnosis at that time was that he was suffering from a drug-induced psychosis against a background of bi-polar affective disorder.

On the 7th April 2000, the applicant was found “guilty but insane”, by a jury at the Central Criminal Court, of the murder of his mother in 1998, following which, under the provisions of s. 2 of the Trial of Lunatics Act 1883 (“the 1883 Act”), then in force, he was committed by the trial judge to the Central Mental Hospital (“CMH”) where he has been treated ever since.

On 12th April 2006 the 1883 Act was repealed and replaced by the Criminal Law (Insanity) Act, 2006 (“the 2006 Act”) which, inter alia, provides by s. 20 (2) thereof that the 2006 Act “shall apply to a person found guilty but insane and detained under section 2 of the Trial of Lunatics Act 1883, as if he or she were a person detained pursuant to an order of the court made under section 5 and accordingly, such person shall be entitled to the benefit of the provisions of this Act.”

The applicant is therefore a person who is deemed to be detained pursuant to the provisions of s. 5 of the Act, and therefore entitled to the protections and procedural safeguards provided for by the 2006 Act and, in particular as far as the present case is concerned, the provisions related to periodical review of his medical condition, and the need or otherwise to continue to be detained at the CMH, and the powers of the Review Board in that regard.
Relevant statutory provisions:
Section 5 of the 2006 Act provides for the return by the jury of a verdict referred to as a “special verdict” to the effect that the accused person is “not guilty by reason of insanity”, replacing the former verdict in such cases under the 1883 Act of “guilty but insane”.

Before returning a “special verdict” the jury must be satisfied that the accused person was suffering at the time of the offence from a mental disorder, such that he/she ought not to be held responsible for the act alleged by reason of the fact that he or she (i) did not know the nature and quality of the act; (ii) did not know that what he or she was doing was wrong; and (iii) was unable to refrain from committing the act.

It is important to mention at this point that the definition of ‘mental disorder’ under the 2006 Act for the purposes of a special verdict by the jury differs from the definition of a ‘mental disorder’ under the Mental Health Act, 2001, and it is the latter which becomes relevant following any committal to the CMH and for the purposes of the reviews by the Mental Health (Criminal Law) Review Board “the Review Board”) thereafter.

The treatment which the applicant has received over the years since he first became a patient at the CMH has resulted in a situation where the relevant medical opinion is that he is no longer suffering from a mental disorder, as defined by the 2001 Act such that his continued detention is necessary. However, a view has been taken that he should not be unconditionally discharged, but, rather, should be released but only on certain conditions related to his supervision. The relevant clinicians are of the view that even though he does not fulfil the criteria for mental disorder under the 2001 Act, he does suffer from a mental disorder for the purposes of the 2006 Act, a different definition.

Due to what is seen as a lacuna in the legislation, and in this regard reference has been made to the judgment of Hanna J. in JB v. The Mental Health (Criminal Law) Review Board and others, unreported, High Court, 25th July 2008, the Review Board considers that such conditions as might be imposed upon any release of the applicant could not be enforced, resulting in a situation where if the applicant was to breach any condition so imposed, he could not be recalled to the CMH.

It has therefore been decided by the Review Board that he should continue to be detained, on the basis it would not be in his best interests or the interests of the public generally that he should be unconditionally discharged. In that regard, the Review Board has relied upon the provisions of s. 11 (2) of the 2006 Act as its authority to detain the applicant in the absence of enforceable conditions which could be attached to a conditional discharge. That provision provides as follows:

“The Review Board shall be independent in the exercise of its functions under this Act and shall have regard to the welfare and safety of the person whose detention it reviews under this Act and to the public interest.”
“Mental disorder” under the 2006 Act is defined by stating in section 1 that it “includes mental illness, mental disability, dementia or any disease of the mind but does not include intoxication”.
It will be recalled that in order to bring in a “special verdict” of not guilty by reason of insanity the jury must be satisfied that at the time of the offence the accused person was suffering from such a mental disorder and that because of it the accused should not be held responsible for his actions.

However, once that verdict is delivered by the jury, the 2006 Act definition ceases to have any relevance, because the scheme of the Act provides at s. 5 (2) that if the Court is satisfied that the person is (i.e. at the time of the verdict) suffering from a mental disorder as defined under the 2001 Act “and is in need of in-patient care or treatment”, the Court shall commit the person to the CMH “until an order is made under section 13” (i.e. the first review).

Section 5(3) provides that for the purposes of s. 5 (2) if the Court is satisfied that the person is (i.e. at the time of the verdict) suffering from a mental disorder “and may be in need of in-patient care or treatment” (my emphasis), the Court may commit the person to the CMH for examination in that regard but for a period not exceeding 14 days. That period may be extended but not beyond 6 months. During that period of committal the Chief Medical Officer of the CMH shall report to the court on whether in his or her opinion the accused person committed for examination is suffering from a mental disorder within the meaning of the 2001 Act and is in need of in-patient care or treatment at the CMH.

It seems to follow from the wording of section 5 that if such a report was provided to the Court and it stated that the person is suffering from a mental disorder as defined by the 2001 Act but in-patient care or treatment was not considered necessary, the Court has no power to make any order for the committal of the person; and that if such a report states that the person is suffering from such a mental disorder and is in need of in-patient care or treatment, the Court must make an order under section 5 (2) for committal to the CMH “until an order is made under section 13 by the Review Board” (my emphasis).

It is part of the applicant’s submission in the present case that the applicant, being a person whose detention is deemed now to be one pursuant to the 2006 Act, is a person in respect of whom the 2006 Act definition of mental disorder now has no relevance, and that he is at this stage a person whose detention can only be under the authority of an order of the Review Board pursuant to the provisions of s. 13 of the Act, and that the order by the Central Criminal Court by which he was originally committed to the CMH under the 1883 Act is spent since he is now under the regime introduced by the 2006 Act.

It has been submitted also that since the medical opinion is now that he no longer suffers from a mental disorder as defined by the 2001 Act and that his being an in-patient at the CMH is not required, there is no lawful basis for his continued detention on foot of any order of the Review Board made under s. 13 (8) of the 2006 Act.

It is submitted that he must be discharged either conditionally or unconditionally in such circumstances. It is submitted that the unenforceability of conditions subject to which the CMH would otherwise feel it appropriate to discharge the applicant, is not sufficient to permit the Review Board to detain the applicant where the medical evidence is not sufficient to permit detention under s. 13 of the Act.

The relevant functions and powers of the Review Board under s. 13 in relation to a person such as the applicant who is detained, or deemed to be detained, under s. 5 of the 2006 Act are set forth as follows:

“(5) Where the clinical director of a designated centre forms the opinion in relation to a patient detained pursuant to section 5 ……… that he or she is no longer in need of in-patient care or treatment at a designated centre he or she shall forthwith notify the Review Board of this opinion.
(6) Where the Review Board receives a notification under subsection (5) it shall order that the patient be brought before it, as soon as may be, and shall, having heard evidence relating to the mental condition of the patient given by the consultant psychiatrist responsible for his or her care and treatment, determine the question whether or not the treatment referred to in subsection (5) is still required and shall make such order as it thinks proper in relation to the patient, whether for his detention, care or treatment in a designated centre or for his or her discharge whether unconditionally or subject to conditions for out-patient treatment or supervision or both.

(7) ………

(8) A patient detained pursuant to section 5 ……… may apply to the Review Board for a review of his or her detention and the Review Board shall, unless satisfied that such a review is not necessary because of any review undertaken under this section, order that the patient be brought before it, as soon as may be, and shall, having heard evidence relating to the mental condition of the patient given by the consultant psychiatrist responsible for his or her care or treatment, determine the question of whether or not the patient is still in need of in-patient treatment in a designated centre and shall make such order as it thinks proper in relation to the patient whether for further detention, care or treatment in a designated centre or for his or her discharge whether unconditionally or subject to conditions for out-patient treatment or supervision or both.”

In his Certificate filed on this application for the purpose of demonstrating the lawful basis of detention at the CMH, the respondent has relied firstly upon the order of the trial judge for the committal of the applicant dated 7th April 2000, and has attached also the eight decisions made by the Review Board under s. 13 of the 2006 Act following the introduction of the 2006 Act, the last of those decisions being made on the 20th November 2009. This last decision records that decision in the following way:
“The Board was informed that all the patient’s leave has been cancelled and that he has been moved from Laurel Lodge to Unit 7 because of an incident that occurred when he was on day leave. It appears that he made an arrangement for another patient at the CMH to be brought to his apartment, although this arrangement was never carried through. His Consultant at the time and the Clinical Director took the view that this was a serious breach of the conditions under which the patient had temporary release and warranted termination of such release and transfer back to Unit 7.
The Board, however, notes that although the Consultant was aware of Mr Lynch’s relationship with the other patient, his written release conditions did not prohibit any meetings between them.

The Board can appreciate the point that, in these circumstances, the patient may well have had cause to believe that a meeting was permissible. It is also cognisant, however, of the view that, taking into account of the circumstances generally surrounding his leave arrangements as described by his Consultant, Mr Lynch knew or ought to have known that the planned meeting would, at a minimum, raise a doubt concerning the depth of his commitment to abide by the spirit as well as the letter of the conditions applying to his leave. It would not be possible for his Consultant to give assurance that personal safety and public interest requirements were met while there were doubts in that regard.

The patient has not been on any medication for any mental disorder for well over two years and prior to this incident had been compliant with the conditions of his leave. It does not appear to the Board that he is in need of in-patient treatment in the Central Mental Hospital and his solicitor has again requested that he should be granted an unconditional discharge. The Board can only repeat its view that this would not be either in his interests or those of the public, and that if he is discharged, it should only be subject to enforceable conditions in relation to supervision. Meanwhile, the Board believes that he is properly detained in the Central Mental Hospital and should remain so detained pending further review, which should take place in two months’ time.” (my emphasis)

The background to the incident referred to in this decision is that in March 2009 the applicant had been granted what is referred to as “level 5 leave” by the Department of Justice, Equality and Law Reform which permitted him to spend one night per week away from the CMH, and that the applicant chose to spend that night at his father’s house. This was increased to two nights per week in April 2009. However, in May 2009, the applicant appears to have rented an apartment in Fairview from his own resources and began to spend the two nights’ weekly leave at that location. It appears that in September 2009 it became known through information received from the female patient concerned, that the applicant had put in place arrangements for her to be brought to that apartment by a male friend of the applicant’s. While this did not actually occur, the attempt was regarded as a breach of his conditions of leave and a breach of trust with his treating team, and thereafter a decision was taken to return him to Unit 7 and to suspend all his external leave from the CMH. It was on the 20th November 2009 that the Review Board affirmed his detention for a further two months, and it was that decision which at the date of the hearing before this Court was the certified basis for his detention.
This information has been gleaned from a note by Dr Mary Davoren of a Multi-Disciplinary Case Conference held on the 16th December 2009 which goes on to describe a lack of cooperation by the applicant with staff and his treating team after his return to Unit 7, and a lack of motivation to work through his clinical issues at that time. This lack of cooperation appears to have persisted through December 2009. It is stated also that at the multi-disciplinary team conference on the 16th December 2009 the view was expressed that the applicant on that date did not fulfil the criteria for mental disorder for the purposes of the 2001 Act, and that he was considered at that time to suffer from a bi-polar disorder which is in remission, and that his behaviour patterns continued to demonstrate an underlying emotionally unstable personality disorder. This memo goes on to record at para. 8.1 : “Therefore he is considered to suffer from a mental disorder within the meaning of CL (I) Act 2006” (my emphasis). It states further at para. 11 that he is not on any medication other than for physical conditions, and under “Diagnostic Issues” it is stated that “[the applicant] is considered to be suffering from an Emotionally Unstable Personality Disorder (ICD-10 F60.3) ……..there has been no obvious evidence of any florid psychotic symptoms since [the applicant] has been discontinued from his anti-psychotic medication since February 2007”. Under “Risk Assessment” it is stated that there is no evidence that the applicant is at any increased risk of self-harm, and no history of self-harm since his admission to CMH, though there is a history of impulsivity. As to him constituting a risk to others it is noted that the killing of his mother “was in the context of drug abuse and acute psychotic illness” and “if his mental state remains stable this risk would remain low”. But it is stated also: “However, this risk would increase if the patient misused illicit substances”. As to the risk of him misusing drugs outside the CMH it is noted that he has stated that he has no intention of using any psychoactive substances in the event of his discharge, but it states also: “However, in an unsupervised setting this risk is likely to increase. Therefore it would be appropriate for [the applicant] to undergo random drug testing if discharged”.

As at the 16th December 2009 the Treatment Objectives from a medical point of view were stated as follows in the said memo:

“1. All future treatment objectives are contingent upon the patient re-engaging with the clinical team.
2. Not considered suitable for conditional discharge even if this were available due to non-adherence with treatment plan.”

Damien Mohan, a consultant forensic psychiatrist at the CMH, has sworn an affidavit in the present application. He gives a history of the applicant’s background of mental illness, and the events which have led to the applicant being a patient at the CMH. He goes on to describe the various and progressive phases of treatment available to such patients while detained, and then in relation to the applicant specifically he states that the applicant has been progressed through the various stages of treatment which he has described and he refers to the case conference which was convened by the CMH on the 16th December 2009 to which I have referred. Then he states at para. 53 of his affidavit:
“53. I say that at the present time the applicant suffers from a bipolar disorder which is in remission and his behaviour pattern continues to demonstrate an underlying emotionally unstable personality disorder. I further say and believe that while the applicant does not satisfy the criteria of a “mental disorder” within the meaning of section 3 of the Mental Health Act, 2001 he does satisfy the criteria of having a “mental disorder” within the meaning of section 1 of the Criminal Law (Insanity) Act, 2006”.
Mr Mohan then describes how in February 2009 how the applicant was transferred from his team to that of another consultant forensic psychiatrist at CMH with responsibility for the ‘rehabilitation and recovery’ programme in the hospital, and that the applicant was then moved from Unit 7, which is the low dependency unit, to another part of the CNH complex known as Laurel Lodge. He states that at that stage the applicant did not show any symptoms of florid psychosis and nor was he being prescribed any psychotropic medication. He then refers to what I have already set forth, namely that in March 2009 the applicant was permitted to reside with his father for one night per week, later in May 2009 extended to two nights per week. Mr Mohan then refers to the applicant obtaining a apartment in Fairview, and to the incident which I have set forth relating to his attempt to have a friend his bring a female patient to that apartment, and to the consequence of that for the applicant, namely the suspension of his external leave, and his return from Laurel Lodge to Unit 7 of CMH.
Mr Mohan then concludes by stating that the applicant has refused to give the hospital an account of what happened in relation to that September 2009 incident and that he has refused also to engage with his clinical team, and that this refusal continued up to the date of swearing of that affidavit, namely the 18th December 2009, and that “it is the opinion of the hospital that in the present circumstances the applicant is not a person suitable for discharge from the hospital”.

The respondent himself has sworn an affidavit on the 11th January 2010, in his capacity as Clinical Director of CMH. He states that he is familiar with what has been stated by Mr Mohan and agrees with the views expressed and adopts them. Among his averments are that the applicant is not a person suitable for discharge from the hospital, and that he is a person to be considered as being affected by the transitional provisions of the 2006 Act and that he is entitled to the statutory rights and processes under the 2006 Act since its commencement. He concludes his affidavit by stating at para. 13:

“I say that I remain of the clinical view that it is neither safe nor appropriate in the applicant’s welfare interests for him to be unconditionally discharged from this hospital. I further say and believe that the risks to his mental health welfare in the event of an unconditional discharge from this hospital would, from a clinical perspective, be unacceptable and would likely result in serious harm to his mental health welfare.”
Feichín McDonagh SC for the applicant has made extensive submissions and has provided helpful written submissions, as have all parties. Mr McDonagh submits firstly that the committal order made by the trial judge at the conclusion of his trial is no longer of any effect and cannot itself be relied upon for the lawfulness of the present detention of the applicant. No party disagrees with that submission, and neither do I. Clearly once the 2006 Act was commenced the applicant was thereafter deemed to have been committed under the provisions of the 2006 Act, and is entitled to all the procedures and statutory provisions set forth in that Act. That includes a review of detention under and in accordance with the provisions of s. 13 of the Act. Mr McDonagh has submitted that in so far as the respondent or the Review Board seek to rely upon the applicant fitting a definition of mental illness as defined by the 2006 Act, and as referred to by Dr Kennedy in his affidavit and in other documents this is erroneous, and that this is not affected in any way by the best interests provisions of s. 11 of the Act. His submission is that such a best interests provision is not a provision which gives any power to detain per se, and that its purpose is simply to provide some guidance or exhortation to relevant decision-makers when making decisions in accordance with the legislation.
The essential submission in this case is that for the applicant’s detention to be lawful, he must be a person who satisfies the provisions of s. 13 of the 2006 Act, and in that regard that the Board must determine “whether or not the patient is still in need patient care or treatment at the CMH”. Mr McDonagh emphasises that under the scheme of the Act, a person may well be considered by the clinical personnel to be suffering from a mental disorder, even one under the 2001 Act definition, but yet who is not considered to need in-patient care or treatment. In other words, simply to suffer from a mental disorder is not sufficient to justify detention, and the fact that the applicant has arrived at the CMH through the criminal process following his conviction does not alter that fact. He has referred to the undoubted fact there would be many persons in any community in the State who may unfortunately suffer from a mental disorder but who are treated other than as an in-patient, and that a person such as the applicant should be treated no differently, and further that the scheme of the Act is designed in a way that achieves that and requires it. Put another way, it is submitted that a person who does not suffer from a mental disorder as defined in the 2001 Act cannot be made the subject of an order for detention under s. 13 of the Act and must be discharged.

He submits also, as I have referred to, that nothing in s. 11 which is relied upon by the respondents, can serve the respondents’ purpose in justifying the continued detention of the applicant at the CMH.

Mr McDonagh has submitted that if the applicant was to have been on trial for this offence on today’s date, a jury would have been entitled to bring in a special verdict, since it was satisfied that the applicant was suffering from a mental disorder under the 2006 Act definition as a result of which he should not be held responsible for the crime, but that on the evidence now available from the CMH he would not be someone who could be committed to the CMH pending the making of an order under section 13 by the Review Board, since he is not a person who “is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre”, as provided for in s. 5 (2) of the 2006 Act. It follows therefore, in his submission, that his continued detention is not authorised now in view of the clinical opinions expressed. He submits that if the applicant could not now be committed under s. 5 of the Act, his detention cannot any longer be lawful. Mr McDonagh submits that the Review Board has failed to appreciate this point, when it takes the view that the detention should be regarded as authorised where the applicant may meet a 2006 Act definition of mental disorder, and where it is of the view that no enforceable conditions can be attached to a conditional release.

It is submitted in this case that the Board have been of the view for some time that the applicant does not suffer from a 2001 Act mental disorder, and also that in-patient care and treatment is not required, and further that the only matter impeding the discharge of the applicant under the powers contained in s. 13 of the Act is a view that while the applicant is suitable for a conditional discharge under that section, there are no such conditions which can be imposed which would be enforceable in the event that the applicant failed to adhere to or comply with such conditions. The conditions which would be placed upon such a discharge would appear in the nature of giving urine samples to ensure that he is not abusing psychotropic substances, or being otherwise supervised in that regard. The view of the Review Board is that he poses a potential risk to the public, if he was to start once again to take such substances, and, quite understandably, this would be a concern in circumstances where the CMH could not recall him to the CMH if that were to occur. It is for these reasons that they rely on s. 11 of the Act.

Mr McDonagh has submitted that such concerns are not sufficient to permit the Review Board to make an order under s. 13 of the Act, and has referred to the relevant provisions for involuntary detention under the Mental Health Act 2001 should the applicant be found to require further detention for care and treatment.

In so far as the respondents might seek to rely on the paternalistic nature of the 2001 Act and, indeed, the 2006 Act and seek to justify the detention of the applicant by reference to that concept, Mr McDonagh submits that such a paternalistic approach may well have relevance to a person suffering from a mental disorder, as defined, but that it cannot be persuasive in the present case where it appears to be accepted that the applicant is not a person who is suffering from such a mental disorder.

Mr McDonagh characterises the present detention of the applicant as preventive detention since it is not detention authorised by the legislation for any medical or care and treatment purposes under the Act, and submits that this was never within the contemplation of the Oireachtas when they replaced the former statutory scheme with the scheme under the 2006 Act.

Felix McEnroy SC for the CMH has indicated that it is the nature of the applicant’s current medical condition which is relied upon in order to justify his detention, and that the CMH is entitled to have the clinical view, following the events of September 2009 when external leave was revoked and he was returned to Unit 7, that, as stated by Mr Mohan in his affidavit, the applicant suffers from a “bipolar disorder which is in remission and his behaviour pattern continues to demonstrate an underlying emotionally unstable personality disorder.”

Mr McEnroy has also sought to submit that it is arguable that the order of committal of the applicant which was made by the trial judge on the 7th April 2000 is still extant, and in that regard has referred to certain comments made by Hanna J. in his judgment (under appeal) in JB v. Mental Health (Criminal Law) Review Board & ors, unreported, High Court, 25th July 2008. Those were judicial review proceedings in order to, inter alia, compel the respondent Board to discharge the applicant conditionally. The Board, as in the present case, was of the view that there was no provision in the 2006 Act for the enforcement of any conditions which might be attached to a discharge, and that any conditional discharge would amount to an unconditional discharge accordingly. While the applicant in that case had indicated his agreement to such conditions, the Board was not confident that he would adhere to them. It was contended for the applicant that in such circumstances the Board was required to discharge him subject to conditions, and that there was no power to continue to detain him since it was the case that he no longer suffered from a mental illness as defined in the 2001 Act and was not in need of in-patient treatment.

A factor in JB which must be mentioned at this stage is that a very important piece of evidence was that the clinical director of CMH in that case was happy to allow that applicant to avail of temporary release under s. 14 of the 2006 Act in terms which the learned judge described as “quite generous” (see p. 20 of his judgment). That level of freedom appears to have weighed heavily in the mind of the learned judge when he concluded that the applicant’s status did not offend against Article 5 of the European Convention on Human Rights, and that s. 13 of the 2006 Act was not incompatible with same.

As to the question whether the order of the trial judge which originally committed the applicant in that case to the CMH remained extant following the first review of detention under s. 13 of the 2006 Act, and remains in force to the present day and can serve to justify the continued detention of the applicant, Mr McEnroy has referred to a passage of the said judgment which commences at page 27 thereof, where the learned judge stated as follows:

“Section 13 (8) of the Act of 2006 is silent as to any regime for the supervision of a person provisionally discharged from a designated centre. As already observed, one of three orders can be made – the further detention of the patient, the unconditional discharge of the patient or his or her discharge subject to conditions for out-patient treatment or supervision or both. In describing what is in sequence the first option open to the Board, the form of words employed, namely for further detention, is interesting. Section 5 (2) cited above, governs the circumstances facing the applicant. The order of Carney J. committing the applicant to the Central Mental Hospital has an expressed currency: “… until an order is made under s. 13”. On one interpretation, it could be argued that once the Board ordered the further detention of the applicant the original order of Carney J. became spent. Even if the Act did not express the nature of the detention order to be made by the Board in the terms it did, an order refusing to discharge a patient still amounts to an order under s. 13. What, consequentially, was the status, indeed relevance, of the s. 5 criteria?
In any event this line of argument was not pressed by any party and I decline to make any finding upon it. The answer to any question raised thereby does not get us any further in determining this matter. I am content to hold that the order of Carney J. is still in situ.” (my emphasis)

In his submissions, Mr McEnroy has submitted that, according to this conclusion, the order of the trial judge made on the 7th April 2000 continues to exist as a basis for the applicant’s detention, and in so far as the applicant may seek to submit that the judgment of Hanna J. is incorrect, Mr McEnroy has referred to the judgment of Clarke J. in Re: Worldport Ireland Ltd (in liquidation), unreported, High Court, 16th June 2005 where that learned judge referred to the comity of the judiciary and to the desirability that a judge of first instance ought usually to follow the decision of a judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong. In the present case, it is not so much that I think that the learned judge is wrong. The judgment is under appeal and it is not for me to express any view in that regard and I do not. But as I read the judgment, while the learned judge stated what he did, he was not intending to reach a final and concluded view about that question, since neither party had pressed the point one way or the other, and it seems to me that the learned judge was proceeding on a working basis that the order remained in situ. It is of some relevance that the learned judge was not dealing with an application for release under Article 40.4.2 of the Constitution, but proceedings by way of judicial review, and to that extent at least the comments of the learned judge can be viewed as being obiter dicta.
In the present case, I am of a different view in relation to the original committal order surviving beyond the making of an order under s. 13 of the 2006 Act, and consider that an order made under section 5 following a special verdict can survive only until an order is made by the Board on the first review by the Review Board under s. 13 of the Act, since that is what the section states. It seems to me that the order made under s. 5 (2) is simply a mechanism for bringing the person into the CMH, so that an opportunity can be provided for the professionals there to decide whether the person is suffering from a mental disorder (under 2001 Act) and is in need of in-patient treatment. A special verdict is a not guilty verdict. The committal order made thereafter is not therefore one to be seen in any penal or punishment context. There is no reason why that category of committal order should endure beyond a point where the medical professionals reach conclusions for the purposes of s. 13 of the Act. What is of concern at the time of the special verdict is handed down is whether or not the person is ill, as defined, and in need of in-patient care or treatment. Once that question is determined under s. 13, there is no reason why the trial judge’s committal order would continue to endure, and wording of s. 13 of the Act is consistent with that.

Mr McEnroy has submitted that all concerned with the care and treatment of the applicant at the CMH have had the best interests of the applicant and the public at the centre of their decision-making. He has referred to the detailed description of the care and treatment programme which has been and is available to the applicant at the CMH. He submits that it is clear that the therapeutic goal for all concerned has been to give back to the applicant as much freedom as is consistent with the public interest, especially given the undisputed facts which caused him to be in the CMH in the first place.

Mr McEnroe has also submitted that the applicant is not correct to say that the 2006 Act is not relevant once a special verdict has been handed down by the jury. He submits that if that was to be the situation then the Oireachtas could simply have introduced some amendment to the 2001 Act in relation to a ‘special verdict’. He submits that a new discrete procedure has been introduced to those in respect of whom a special verdict has been made, and that the procedures must be looked at carefully, as provided for in s. 13 (8) of the 2006 Act, and that one should not simply look at a definition of mental disorder by reference to the 2001 Act, and he draws attention to the manner in which mental disorder is defined in an inclusive way in the 2006 Act, and again to the fact that the applicant is a person who has a mental condition which fits that definition, namely an emotionally unstable personality disorder.

He refers to the function of the Review Board as set forth in s. 13 (8) and to the fact that it provides that a person is detained under s. 5 of the Act (as is the applicant) may apply for a review, and that having heard the evidence relating to his medical condition it “shall … determine the question of whether or not the patient is still in need of in-patient treatment at the CMH”, and thereafter make an order either for further detention, care and treatment, or for discharge either conditionally or unconditionally. He submits that it is not, by reference to provisions of that section, part of the function of the Review Board on a s.13 review to decide if the patient still suffers from a 2001 Act type mental disorder, that consideration being relevant only to the procedures under s. 5 when the committal is made which lasts until the first review under s. 13 of the Act. It is submitted that at a Review Board hearing the only matter required to be determined is whether a person such as the applicant, who was detained because he was suffering from a mental disorder and was in need of in-patient care or treatment, is still in need of that in-patient treatment.

Mr McEnroe submits that it is clear therefore that even though a person may not fit the 2001 Act definition of mental disorder by the time of any particular review under s. 13 of the 2006 Act, he may still under s. 13 be detained further provided that the Board is of the view that he is still in need of inpatient care or treatment, and that the 2006 Act definition applies generally in relation to that Act, which includes the condition of the applicant. He submits that the inclusive type of definition contained in s. 1 of the 2006 Act is not to be taken as being exhaustive. In written submissions, the question is asked as to why, if the applicant is correct in his asserted view that the only basis upon which he can be detained in the hospital is if the Board is satisfied at the conclusion of a statutory review that he is suffering from a mental order within the meaning of the 2001 Act, there is a statutory definition of a mental disorder in s. 1 of the 2006 Act, and why do the review provisions relating to the Board in the 2006 Act make no reference to the definition of mental disorder contained in the 2001 Act?

That submission is in contrast to the applicant’s submission that it could not be the intention of the Oireachtas that a person, who could not have been committed in the first place to the CMH under s. 5, could nevertheless, having been so detained, continue to be detained for care and treatment for some condition falling short of a 2001 Act mental disorder, and that such a mental disorder is a condition precedent to ongoing or further detention under s. 13 of the Act, even though that section is silent in that regard.

To some extent that issue is not particularly relevant to this particular application, since according to the evidence the applicant is considered not only to be not suffering from a 2001 Act mental disorder but also that he no longer is in need of in-patient care and treatment, the only difficulty being that the Board is unwilling, in the interests of the public, to discharge the applicant on conditions which it feels it cannot supervise or enforce in the event of the applicant breaching same.

Mr McEnroe submits that the Board were entitled to have regard to the fact that conditions imposed on any discharge of the applicant cannot be enforced and to have the view that such a conditional discharge amounts to an unconditional discharge – something which they are not prepared to do. In that regard, he refers to the separate regime for temporary release subject to conditions which are contained in s. 14 of the Act and to the fact that that section makes specific provision for the arrest of such a person if conditions are breached, thereby bringing to an end the temporary release.

Having regard to the provisions of s. 11 of the Act, it is submitted that the Board was entitled to decide as it did, and that the continued detention of the applicant by the CMH is in accordance with law.

Anthony Aston SC has made submissions on behalf of the Review Board. He submits that this Court should have regard to the continuum of treatment which has been given to the applicant. He agrees that the committal order made by the trial judge under s. 5(2) of the 2006 act endures only until such time as an order is made by the Review Board under s. 13 of the Act, but he disagrees with Mr McDonagh’s submission that once a person is no longer suffering from a 2001 Act mental disorder he must be released, and he submits that this cannot be seen as being the intention of the Oireachtas, given that the Act is silent in that regard, particular in s. 13 (8), and having regard to the over-arching best interests of s. 11 (2) of the 2006 Act requiring the Board to have regard not just to the welfare and safety of the applicant, but also to the public interest when making its decisions.

Mr Aston has drawn attention to the absence of any provision in the 2006 Act for the enforcement of any conditions which might be imposed upon a discharge by the Review Board, and to the contrast in that regard with the provisions for granting temporary release provided for in section 14 of that Act. Under those provisions, conditions may be attached to temporary release, and s.14 (4) of the Act requires the person to comply with such conditions, and where a person is in breach of any conditions imposed, he/she is deemed to be ‘unlawfully at large’ whereupon under powers contained in s. 14 (7) “a member of the Garda Siochana shall, or an officer or servant of the designated centre may, arrest without warrant any person whom he or she suspects to be unlawfully at large while subject to an order for his or her detention ……… and bring him or her back to such centre”.

These enforcement provisions are not conferred upon the Review Board, of course. They are powers given to members of An Garda Siochana and to the clinical director of the designated centre and staff therein. But Mr Aston draws attention to the absence of any enforcement provisions which might be imposed upon a patient who the Review Board considers should be conditionally discharged. It is accepted that in the case of the applicant, the Review Board was satisfied on the evidence before it that the applicant was not suffering from a mental disorder which necessitated in-patient treatment, but that it considered also that he was not suitable for unconditional discharge, and should be discharged subject to a residence requirement and in relation to on-going supervision and care. It was, as already referred to, the lack of any powers under the 2006 Act to take any steps where such conditions may not be adhered to, which motivated the Review Board to make the order in November 2009 for further detention, albeit with a further review to be carried out two months later.
Submissions made in relation to Article 5 – European Convention on Human Rights:
The submissions made by all parties on this application have addressed not only the question of the lawfulness of the applicant’s detention by reference to the relevant statutory provisions, but also by reference to some jurisprudence of the European Court of Human Rights in relation to Article 5.1 of the Convention. That Article was the subject also of submissions in the case already referred to, namely JB v. The Mental Health (Criminal Law) Review Board and others. There are factual similarities between that case and the present one in as much as in JB the applicant was not at the relevant time suffering from a mental disorder requiring in-patient treatment, yet he was not, like the present applicant, considered suitable for unconditional release. It was decided by a Review Board that conditional discharge in such circumstances was not in either the interests of the applicant or in the public interest, and that any discharge would have to be subject to enforceable conditions.

Mr McDonagh on the other hand, as already referred to, has highlighted the fact that in all probability the learned judge, in finding that there was no breach of Article 5 rights, was influenced by the undisputed fact that JB was the beneficiary of a generous amount of liberty by way of temporary release. It appears that he was on temporary release and spending four nights a week at home with his wife and son. The other three nights per week were spent at the CMH but in the least restrictive unit. This situation was found by the learned judge to result in a “limited curtailment” of JB’s liberty.

But all parties have referred in particular to the two cases – Winterwerp v. The Netherlands [1979/1980] 2 EHRR 387; and Johnson v. United Kingdom [1999] 27 EHRR 296. These cases were the subject of discussion also in JB., and in view of the very clear summary of those cases given by Hanna J. in JB, I feel that it is unnecessary to do so again here. Mr McDonagh for the applicant submits that it is clear from this jurisprudence that a basis requirement for the lawfulness of detention under the Convention is that a person be suffering from a mental illness which requires him or her to be involuntary detention for the purpose of appropriate care or treatment. But he accepts that in Johnson the Court was clearly of the view that the absence of such a mental illness did not mandate immediate release, and that some time could pass thereafter while necessary step-down procedures and preparations for release were put in place, and that the process for ultimate release could be gradual.

Mr Aston has referred in that regard to the judgment of the European Court of Human Rights in Johnson and submits that the judgment of the Court in that case supports the position adopted by the Review Board that having regard to the public interest the further detention of the applicant in the circumstances of this case is permissible within Article 5 of the European Convention on Human Rights, and that the Board must have regard to the case law in the exercise of its powers under the 2006 Act.

In Winterwerp the Court recalled that the principle underlying Article 5.1 was that no person should be deprived of his liberty unless he has been reliably been shown to be of unsound mind and that the mental disorder is such that compulsory confinement is warranted. The Article has as its objective that no person should be the subject of arbitrary detention. Under Winterwerp principles, detention of a person of unsound mind depends, in Convention terms, on three criteria: (a) the patient must be reliably shown upon objective grounds to be suffering from a true mental disorder; (b) the disorder must be of a kind and degree that warrants compulsory confinement; and (c) the validity of any continued detention depends upon the persistence of such a mental disorder, established upon objective medical expertise. However, as clarified in Johnson, the fact that the third of these criteria may cease to be fulfilled does not lead inevitably to a requirement under Article 5 for immediate and unconditional discharge.

It is worth quoting a passage from Johnson in this regard, which has been referred to by Mr Aston for the Review Board. It is a passage which appears also in the JB judgment at p. 36 thereof. While on the facts of that case a violation of Article 5 was found to have occurred, the Court went on to state as follows:

“By maintaining that the 1989 Tribunal was satisfied that he was no longer suffering from the mental illness which led to his committal to Rampton Hospital, Johnson is arguing that the abovementioned third condition as to the persistence of mental disorder was not fulfilled and he should as a consequence have been immediately and unconditionally be released from detention.
The Court cannot accept that submission. In its view it does not automatically follow from a finding by an expert authority that the mental disorder which justified a patient’s compulsory confinement no longer persists, that the latter must be immediately and unconditionally released.

Such a rigid approach to the interpretation of that condition would place an unacceptable degree of constraint on the responsible authority’s exercise of judgment to determine in particular cases and on the basis of all the relevant circumstances whether the interests of the patient and the community into which he is to be released would in fact be best served by this course of action. It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not recovery from an episode of mental illness which justified a patient’s confinement is complete and definitive or merely apparent cannot in all cases be measured with absolute certainty. It is the behaviour of the patient in the period spent outside the confines of the psychiatric institution which will be conclusive of this.”

Mr Aston submits that accordingly under the case-law of the ECHR the national authority is entitled to exercise a measure of discretion in deciding whether in the light of all the relevant circumstances and interests at stake it would be appropriate to direct the immediate discharge of a person who is no longer suffering from the mental disorder which led to his detention in the first place, or any other mental disorder, and that this is reflected in the provisions of s. 11 (2) of the 2006 Act. Mr McEnroy makes a similar submission on behalf of the CMH.
Conclusions:
It is common case that having been found guilty but insane and committed to the CMH following his conviction in April 2000, the applicant by virtue of s. 20 of the 2006 Act is entitled to the benefit of the provisions of that Act. In that regard it is s. 13 (8), as renumbered, which is principally relevant.

It is not disputed either by any party that the applicant no longer suffers from a mental disorder as defined by the 2001 Act. Neither is it disputed by the applicant that he suffers now from the unstable personality disorder already referred to.

It is not disputed by the CMH or the Review Board that such personality disorder as the applicant suffers does not require his compulsory detention at the CMH. In fact, while it is not considered that it would be appropriate, having regard to the public interest, to discharge him unconditionally, he is considered by the Review Board to be a person who would be suitable for discharge subject to conditions including supervision.

On the application before this Court there has been no evidence of what precisely any such conditions might be. The applicant is prepared to abide by such conditions as may be imposed, and there is no evidence before this Court which would be sufficient to establish as a matter of probability that the applicant would not abide by such conditions as might be imposed. It is true that in September 2009 a view was taken by the CMH that he had breached the trust reposed in him by the attempt to make an arrangement whereby a female patient would be brought by his friend to his rented apartment during his temporary release, and that following his return to the CMH he has not cooperated with the medical staff, but that seems to me likely to be a form of protest against the cancellation of his temporary release and bringing him back into Unit 7, and not necessarily evidence that if discharged conditionally he would not abide by those conditions. The view has been taken that while the applicant may have been reasonably under the impression that the attempted arrangement was permissible but that it speaks to whether or not there can be confidence that he would abide by conditions for a conditional discharge. The relevant portion of the decision of the Board dated 20th November 2009,as already set forth, states as follows:

“The Board, however, notes that although the Consultant was aware of Mr Lynch’s relationship with the other patient, his written release conditions did not prohibit any meetings between them.
The Board can appreciate the point that, in these circumstances, the patient may well have had cause to believe that a meeting was permissible. It is also cognisant, however, of the view that, taking into account of the circumstances generally surrounding his leave arrangements as described by his Consultant, Mr Lynch knew or ought to have known that the planned meeting would, at a minimum, raise a doubt concerning the depth of his commitment to abide by the spirit as well as the letter of the conditions applying to his leave. It would not be possible for his Consultant to give assurance that personal safety and public interest requirements were met while there were doubts in that regard.” (my emphasis)

There is no disputing the fact that, while providing for arrest and recall to the CMH in respect of a person breaching the terms of a temporary release under the provisions of s. 14 of the 2006 Act, the Oireachtas has chosen to make no provision in s. 13 for any power to recall to detention a person, who is conditionally discharged, and who breaches any conditions attached to such conditional discharge, or for enforcing those conditions in any manner whatsoever. It would appear to me that this absence of any power to recall to detention or to in any way enforce conditions attached to a conditional discharge is a deliberate and conscious choice made by the Oireachtas, since in the very next section of the same Act a power to recall is provided for. The provisions of s.13 (8) must be read in that light. In passing I would note that in the equivalent UK legislation there is a power to recall a person to detention in such circumstances (see s. 73(4) of the Mental Health Act, 1983, and of course that must be borne in mind when reading the judgments of the ECHR in cases against the United Kingdom. It is a different statutory regime, at least to the extent of enforcement and recall. In contrast to the law in this jurisdiction a conditionally discharged patient under UK law does not cease to be liable to be detained under the ‘hospital order’ made following conviction for an offence.
Where the manner in which s. 13 of the 2006 Act is clear and unambiguous, the intention of the Oireachtas is clear and unambiguous. In such circumstances, this Court must not overstrain, by way of a purposive interpretation, in order to read into s. 13 (8), perhaps by reference to s. 11 of the Act, in all cases where conditional discharge is considered appropriate by the Review Board, a power to decline to impose conditions, because the Review Board has taken the view that any such conditions cannot be enforced, and instead to continue to detain the person concerned.

It seems to me that to have such a fixed policy, if it be such, is to ignore the express terms of the Act, and to go beyond its statutory powers. I do not believe that s. 11 is sufficient to enable the Review Board to ignore the possibility of a conditional discharge, and confine itself to making decisions either to detain or discharge unconditionally. That is not what s. 13 (8) says. In my view the relevance of s. 11 is that, having decided that a person is not required to be detained, and ought not to be discharged unconditionally, it must have regard to the welfare and safety of the person and to the public interest when deciding upon what conditions are appropriate to be attached to the discharge. I do not believe that it is open to the Review Board to decide that because there is no provision for recall or other enforcement of conditions it will confine its purview to either further detention or unconditional discharge.

Nowhere in the papers before me on this application is there any evidence that the Review Board considered what, if any, conditions would be appropriate in this case taking into account the safety and welfare of the applicant and to the public interest, and having had the opinion of the relevant medical experts that the applicant was suitable for conditional discharge.

Neither is there any evidence that the Review Board was of the opinion, whether evidence-based or otherwise, that the applicant would, if discharged subject to certain conditions, breach any such conditions. It would clearly be open to a Review Board, on appropriate evidence, to form the opinion that the person meets the criteria for a conditional discharge, to form a view as to what those conditions should comprise, but nevertheless conclude, again based on relevant evidence, that the person would not abide by or comply with some or all such conditions. By way of s. 11 of the Act, the Review Board would in my view be entitled to continue to detain the person in such circumstances, where either the person’s own safety and welfare, or the public interest required it.

If the Review Board has a general policy, and it seems that it does, that it will not order a conditional discharge because there are no powers to enforce conditions imposed, the arbitrary detention of persons who are considered suitable for conditional discharge will result, and, furthermore, such a policy must operate on a presumption, and an unfair one in many cases perhaps, that the person though expressing a willingness to abide by conditions, will in fact breach them. This will lead to arbitrariness in the decision to detain, and may constitute a breach of obligations under Article 5 of the Convention.

In JB, it seems clear that the learned Hanna J. considered that the very liberal regime of temporary release which that applicant continued to enjoy distinguished JB from a case such as Johnson, and enabled the learned judge to conclude that the Review Board had acted reasonably in its decision to continue the detention, and that the status of that applicant was not a violation of Article 5 of the Convention and that s. 13 of the Act was not incompatible with it. His conclusions in this regard are at p. 30 of his judgment when he stated:

“In all the circumstances and in view of the interests to which the Board are enjoined to have regard under the Act of 2006, I am of the view that they acted lawfully and within jurisdiction in ordering his further detention and in a manner which meets the scrutiny of the Constitution given that the applicant is at liberty to a degree commensurate with his medical needs and interest and the public interest.”
The position of the applicant herein is markedly different to JB whereby he is detained at the CMH with all temporary release cancelled. He has no element of liberty whatsoever. The reasons for that situation have been set forth by reference to the decision of the Review Board dated 20th November 2009.
In my view, what has gone wrong in the case of the applicant is that the Board has proceeded unilaterally to the view that the applicant will breach conditions which might otherwise be attached to a conditional discharge. They have come to that view only on the basis of the September 2009 incident. I do not read the decision recorded as set forth above as finding that the applicant was particularly at fault or culpable in thinking that his attempt at having contact at his apartment with that other person was not a breach of his conditions for temporary release. There seems to be an acceptance on the part of those concerned that there may have been some uncertainty about that, and yet it has had serious implications for the applicant’s liberty.

Once the Review Board was satisfied that the applicant was not suffering from a 2001 Act mental disorder in respect of which his care and treatment necessitated that he be detained, and therefore that he could not simply be detained, and once it was satisfied also that the applicant ought not to be unconditionally discharged, it was obliged to consider the only remaining option under the section, namely the question of a conditional discharge. I do not believe that it was appropriate not to consider that option, which is effectively what happened because of its own policy.

What it ought to have done in my view was to identify and satisfy itself as to what the appropriate conditions would be both in the interests of the care and welfare of the applicant himself and the wider public interest, and then, including by giving the applicant an opportunity to be heard in relation to them, decide on the available evidence including of past behaviour, if the applicant was likely to abide by them. That process may well have led the Review Board to a reasoned conclusion that at that point in time it was not, taking into account the public interest, appropriate to discharge him conditionally, and that further detention was therefore required.

If this were an application for reliefs by way of judicial review, perhaps to quash the decision of the Review Board, this Court could consider doing so and remitting the matter to the Board for a fresh decision which could be made having regard to what I have just stated. But the relief sought under Article 40.4.2 of the Constitution which limits this Court to either a finding that detention is in accordance with law, or, if not, to order the release of the applicant. There are no other possibilities. Having said that, however, a body of case-law has developed under the 2001 Act whereby in the event of detention being found to be other than in accordance with law, the Court nevertheless hesitates for a while and allows some time for the interests of the person concerned to be safeguarded in some way by appropriate steps being taken to ensure his/her safety and well-being. Such persons may well be suffering from an undisputed mental disorder yet procedures have been conducted in such a way as to not be in accordance with the statutory code. Such persons remain vulnerable, and it would be unconscionable for a Court in such circumstances to simply release them to the side of the street, without any regard for their safety and welfare, and the safety of the public. In other words, a paternalistic approach is taken in those special and limited circumstances, even within the very narrow confines of the Court’s jurisdiction under Article 40.4.2 of the Constitution.

The present applicant is different. He does not suffer from a mental disorder. He suffers from a personality disorder for which he is not required to take any medication and which does not require detention for any treatment. He has been on no medication at all for over two years. He does not therefore require to be detained for the purpose of any recommended treatment or for ensuring that he continues to take medication. He is suitable for release into the community, subject to his complying with certain conditions, which would appear to be directed towards ensuring that he does not abuse psychotropic substances, and this would be achieved by the analysis of urine samples on a regular basis. It does not seem to me that the same paternalistic imperative comes into play in these circumstances.
Lawfulness of detention:
The fact that the applicant no longer suffers from a mental disorder as defined in the 2001 Act is not of itself something which mandates his discharge, with or without conditions, under s. 13 (8) of the 2006 Act. Such a mental disorder operates as a key to the entrance gate, but once admitted and under the regime prescribed by the 2006 Act a person may recover either partially or completely so that he/she is no longer within the definition of mental disorder under the 2001 Act. It does not follow that because he no longer suffers from the mental disorder which justified his/her detention at the CMH in the first place that he must be discharged. The order of the trial judge in my view endures only until an order is made by the Review Board following the first review. Thereafter it is the Review Board which determines whether the person remains detained, or whether he/she is discharged either conditionally or unconditionally.

The protection to which such a person is entitled is a review from time to time under s. 13 (8) when all relevant medical evidence and opinion will be available to the Review Board which will then exercise its powers under that section, including by having regard to the interests referred to in s. 11(2) of the Act. Though, as I have already stated, section 11(2) of the Act does not itself confer any power to detain. But it must guide the decisions which the Board makes under s. 13 (8).

The Board had been concerned for some time about the absence of any powers to enforce conditions. The Review Board decision dated 17th December 2008 for example noted that the consultant agreed that the applicant was no longer at that time suffering from a mental disorder as defined in the 2001 Act. But it concluded, correctly in my view, that even where the person was not in need of in-patient treatment, the section empowered the Board to continue to detain for care and treatment purposes. It has power also to discharge conditionally, but in this case and at that time the Board would, according to its decision “probably discharge him conditionally if the Act contained any powers of enforcement of conditions as there could then be supervision after discharge ….” But it was in favour of short periods of temporary release, and of again considering the question of his unconditional discharge “if he shows himself able to cope with unaccompanied leave for a comparatively short period”.

By February 2009 the Board at its review decided that “it would still not be in his interest to grant unconditional discharge in view of his limited experience of coping on his own, particularly having regard to his physical limitations”. Again detention was to be ameliorated by “as much leave as possible” under s. 14 of the Act.

By July 2009, the applicant was considered to be ready for a move to his apartment for two nights per week and that this would be in his best interests, provided there was supervision and that he would submit to random drug-testing. But at least it was decided that, while the absence of powers to enforce conditions meant that the applicant could not be discharged conditionally, his gradual move to independent living could be achieved under the s. 14 temporary release provisions.

By November 2009 unfortunately, the incident in September 2009 had occurred and this was considered to be sufficiently serious to warrant the cancellation of all temporary release. That in turn appears to have prompted the applicant to respond by withdrawing cooperation with the treating staff. He has now been detained simpliciter, since the Board retains its view that conditional release is inappropriate in the absence of powers to enforce conditions, having regard to the public interest and his own interests.

I have set out this sequence again, in part by repeating what has already been set forth earlier in this judgment, in order to show the continuum of consideration by the Board of the position of the applicant. It is clear that there has never been any capricious or arbitrary decision to simply detain the applicant from time to time for no apparent reason. They have been conscious of the improvement in the applicant’s condition and that he no longer needed to be detained for treatment as such. It is two years or more since he has received any treatment as such. He has not been on medication other than for physical symptoms. They are at all times concerned not to discharge the applicant unconditionally, simply because of its view that any conditions which it would impose would have to be capable of supervision and enforcement. There can be no doubt that at all relevant times, the Board and those at the CMH in whose care he has been and is, have had the applicant’s best interests at the heart of their decision-making.

The ultimate question which this Court must decide is whether the decision to detain which was made by the Review Board on the 20th November 2009, as recorded in the record of that decision which bears the date 30th November 2009, is one the Board was entitled to make or was it one which is unlawful and requiring the release of the applicant. The applicant has submitted that once he is no longer suffering from a mental disorder he must be discharged. That is not correct in my view. Section 13 (8) makes no reference to making any finding as to whether a mental disorder still exists. The section gives the Board a wide discretion by the use of the words “ such order as it thinks proper whether for further detention, care or treatment in a designated centre or for his or her discharge whether unconditionally or subject to conditions for out-patient treatment or supervision or both”. That does not mean that the Board is entitled to make whatever order it wants. It must act rationally, judicially and in accordance with principles of constitutional justice. It seems to me that provided that it goes about its decision-making task in a proper manner, the decision to detain the applicant in the circumstances of the present case is made in accordance with law, and does not mandate the applicant’s release on the basis that his detention is unlawful.

It seems to me that it is in accordance with the case-law of the European Court of Human Rights in relation to Article 5 of the Convention, a fair measure of appreciation is permitted to a body such as the Review Board in deciding whether or not to discharge a person, conditionally or unconditionally, or whether it is necessary to continue to detain him, the most important principle for Article 5 purposes being that a person be protected from any decision which is purely arbitrary or capricious, and which could detain a person for insufficient reason and for an unreasonable length of time without adequate redress or remedy.

An interesting case in point is that of Kolanis v. The United Kingdom [application no. 517/02], 21st June 2005. That applicant had been convicted of causing grievous bodily harm with intent, but was found also to be suffering from a mental illness. She alleged that her continued detention after a Mental Health Review Tribunal had directed her release subject to conditions was no longer justified and was without appropriate procedural safeguards, and she sought her discharge. The medical evidence was that a discharge was not appropriate but that she should instead be transferred to hostel-type accommodation under the care of a supervising consultant psychiatrist. The Review Tribunal nevertheless decided that she should be conditionally discharged, the conditions being that she resides with her parents, that she co-operate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her. That decision was made in August 1999. However, discharge was deferred until such time as “satisfactory arrangements had been made to meet the conditions imposed”. It suffices to say that it proved impossible to fulfil the conditions, principally because for all sorts of reasons it proved impossible to find a forensic psychiatrist who was prepared to supervise the person if she was to be residing at her parents’ home. By early 2000 the applicant was bringing judicial review proceedings to quash the decision on the basis that it contained conditions which were impossible to fulfil, and to compel the health authority to provide her with psychiatric treatment in accordance with the conditions imposed. It was submitted in those proceedings that she was entitled to be discharged, that the health authority was in breach of its statutory duties for failing to provide the necessary services, and that the failure to comply with those conditions within a reasonable time was a breach of Article 5 of the Convention. At first instance it was concluded that the health authority was not under an absolute duty to implement the conditions imposed, and that what was required was that it take all reasonable steps in that regard, and that it had done so. An appeal was dismissed by the Court of Appeal, and in due course the House of Lords refused a petition of appeal therefrom.

The European Court of Human Rights having heard submissions noted in its judgment (para.70) noted that the reasoning of the Mental Health Review Tribunal showed that “the discharge of the applicant was only regarded as appropriate if there was continued treatment or supervision necessary to protect her own health and the safety of the community, and that in the absence of such treatment her detention continued to be necessary in line with the purpose of Article 5 (1) [of the Convention]”. The Court went on at paragraph 71 to state:

“As events in the present case showed, the treatment considered necessary for such conditional discharge may not prove available, in which circumstances there can be no question of interpreting Article 5 (1) (e) as requiring the applicant’s discharge without the conditions necessary for protecting her and the public, or as imposing an absolute obligation on the authorities to ensure that the conditions are fulfilled. ……… In the situation under consideration a failure by the local authority to use its best efforts or any breach of duty by a psychiatrist in refusing care in the community would be amenable to judicial review. The Court is therefore not persuaded that local authorities or doctors could wilfully or arbitrarily block the discharge of patients into the community without proper grounds or excuse, or that it occurred in this case.”
This passage demonstrates the non-absolute right to discharge where no mental disorder exists, and the measure of appreciation to be accorded to decision-makers in relation to the question of whether it is appropriate to discharge, conditionally or unconditionally, or whether to detain.
The facts of Kolanis are of course necessarily somewhat different to the present case where it is not the impossibility of fulfilling whatever conditions might be imposed that led to the making of a detention order, but rather the absence of a mechanism for the enforcement of same, should the applicant fail to observe them or any of them. In such circumstances the UK statutory scheme enables the person to be recalled, but that is not the case under the 2006 Act. But it seems to me that the jurisprudence of the European Court of Human Rights respects national law, providing that one way or another adequate safeguards exist to guarantee that a person is not made the subject of an arbitrary detention and with no adequate form of redress by way of review or application for release or otherwise. It does not seem to me that the fact that there is, quite consciously and deliberately on the part of the Oireachtas, no prescribed means of enforcing conditions or possibility of recalling a person conditionally discharged leads to a violation of Article 5 rights by denying any reality to the prospect of a conditional release, given the known view of the Review Board in relation to enforceability.

My concern in the present case is the process by which the Board determined, in so far as it did at all, what conditions might be appropriate for a conditional discharge, and to whether there was evidence before the Review Board, or at least some rational basis for a conclusion, that the applicant would as a matter of probability not comply with such conditions. After all, the decision to be made in that regard has implications for the liberty of the applicant, and it would be important that he have a fair hearing in that regard and an adequate opportunity to address any concerns arising in that regard. As I have stated already, the decision seems to have been predicated on the presumption that the applicant would not comply with conditions, and the only basis for such a view seems to have been the incident in September 2009, and it seems to have been accepted by all concerned that there is room for doubt as to whether he was actually in breach of any condition of his temporary release, and that it could be reasonable to take the view that he would have considered that he was not.

However, on the present application, the only issue is whether the detention of the applicant is in accordance with law. I believe that it is – both in terms of the statute and in terms of Article 5.1 of the Convention.

Other considerations could come into play if the present application was one brought by way of judicial review. In such proceedings the applicant might have sought to quash the decision and order made on the 20th November 2009 on the basis that the Board had not properly considered what particular conditions would have to be attached to a conditional discharge, and had failed to consider properly whether or not there was sufficient evidence to justify a conclusion that the applicant would not comply with any or all of such conditions. Questions of fair procedures might also arise. The applicant might have sought an order of mandamus directing that a further meeting of the Review Board take place at which all these matters would be reconsidered, and at which the applicant would be able to address concerns as to compliance. I should not, and do not, express any view on such questions lest by doing so I trespass beyond the confines of this case and into territory which may be relevant in other proceedings in which there would be an opportunity to provide complete evidence of any matter relevant to a consideration of the process leading to the decision in November 2009.

For all these reasons, I refuse the relief sought on this application.

MS F. v The Mental Health Tribunal, The Mental Health Commission, Ireland, The Attorney General

2015 642 JR

High Court

8 November 2016

unreported
[2016] IEHC 623
Mr Justice Max Barrett

November 8, 2016

JUDGMENT
I. Key Issues Arising.
1. 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.
2. 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 days.

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 (s.15).

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.
3. 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.
4. 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.
5. 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).

6. 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 for good order in the care and treatment of that person and the management of that care and treatment. The rendering invalid of an otherwise valid renewal order by reason of a defect in a prior renewal or admission order is in my view inimical to good order in this process and ultimately not in the best interest of someone suffering from mental disorder”.

7. The respondents contend, in light of the general thrust of the above-mentioned case-law, that where an admission order (Order A) has expired, there is no practical purpose and no legal basis for continuing with a s.19 appeal as events have been undertaken by the new order (Order B). Ms F makes various contrary contentions that have been touched upon above and are considered in more detail hereafter.

VI. Restricting the right of appeal?
8. Ms F contends that the Circuit Court erred on 10th November in placing a restriction on her right of appeal that is not provided for by the Act of 2001. The court does not perceive that any restriction was placed on Ms F’s right of appeal. Her appeal was brought and heard and the subject-matter of the appeal was found to have expired. It seems to the court that to suggest that this involves a restriction of the right of appeal is, to borrow from the recent decision of the Supreme Court in Kershaw v. Ireland and the Attorney General [2016] IESC 35, para. 37, to confuse “restrictions which directly affect the right at the access point in the first instance, and decisions made thereafter which may affect the conduct of the litigation”.

VII. Unconstitutional interpretation of s.19?
9. Ms F contends that the Circuit Court failed on 10th November to interpret s.19 in a constitutional manner. It appears to the court that the Circuit Court’s reading of s.19 was correct. Given the court’s finding that the reading afforded by the Circuit Court to s.19 is correct, it is a reading that comes clothed with that presumption of constitutionality that has been held to apply to legislation since Pigs Marketing Board v. Donnelly [1939] I.R. 413, 417 and in the years since. (See, for example, the decisions of the Supreme Court in In re the Planning and Development Bill 1999 [2000] 2 I.R. 321, and JD v. Residential Institutions Redress Review Committee [2010] 2 I.L.R.M. 181).

VIII. Discrimination?
10. Ms F contends that 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. However, there is no principle that requires there to be an exact identity of procedures open to persons who are not similarly situated. (See Brohoon v. Ireland [2011] 2 I.R. 639, and Markey v. Minister for Justice [2012] 1 I.R. 62). Nor is there any absolute requirement as to procedural equality. (Akpekpe v. Medical Council [2014] 3 I.R. 420).

IX. Determination as to presence/absence of mental disorder?
11. Ms F contends that 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, the date on which the hearing was held. The court does not agree. Her appeal against the admission order (Order A) had become moot because that order had been supplanted by the renewal order (Order B). Thus the Circuit Court could neither affirm nor revoke Order A and, as a mental health tribunal had yet to affirm or revoke Order B, it would have been premature for the Circuit Court to make a finding concerning that order. That said, there are practical steps that could be taken (and which the court understands are taken) to avoid wasting time in instances such as those which Ms F seeks now to impugn. These are touched upon later below. It suffices at this point to note that statute does not envision the Circuit Court making a finding as to whether or not a person is suffering from a mental disorder before the admission/renewal order that includes that finding is affirmed by a mental health tribunal. (If it is revoked, there can be no appeal under s.19(1)).

X. Right of appeal as extension of admission order?
12. Ms F contends that it was open to the Circuit Court to construe the renewal order as nothing more than an extension of the admission order. In fact, as this Court noted in M., if one has regard to s.15(2) of the Act of 2001, which provides that “ The [21-day] period referred to in subsection (1) may be extended by order (to be known as and in this Act referred to as ‘a renewal order’)” (emphasis added), it appears that a renewal order ought most properly to be viewed as an extension of a period of detention, not a renewal of a previous order at all. But what it certainly is not, and what it has consistently been held by the courts not to be, is an extension of an admission order: a renewal order supplants the previous order. (See W.Q., E.H., and M., op. cit.).

XI. Mental Health Commission denying right of appeal?
13. Ms F contends that the Mental Health Commission has been 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 ”. There is not an iota of evidence to suggest that the Mental Health Commission has impeded or denied the right of appeal under s.19 at any time. There is no requirement in the Act that a s.19 appeal must reach the Circuit Court in a particular timeframe, be it before the expiry of the initial admission order or otherwise. As to the pre-appeal process, with the best will in the world, and there has been no suggestion but that all relevant parties have at all times manifested such will, it takes time for the staff at a mental hospital to determine what ails a patient, for an independent mental health tribunal to be convened, and for an independent consultant psychiatrist to examine a patient and prepare a report for the tribunal. If all of this typically takes to the latter end of the 21-day period within which a tribunal must typically sit, and there is suggestion that it often does, then that may perhaps be slower than it could be – perhaps – but that is the extent of matters and no legal consequence flows therefrom, at least not in the within proceedings.

XII. Expedition of pre-appeal process.
14. Ms F contends that 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. The court has addressed this point above.

XIII. Section 19 is unconstitutional?
15. Ms F contends that s.19 is unconstitutional and invalid, having regard to the Constitution, in particular Articles 34, 38 and 40. The court does not accept that this contention is correct. The Constitution does not confer a right of appeal to the Circuit Court, whether by virtue of Art. 34 or any other provision of the Constitution. As Charleton J. observed in Han v. President of the Circuit Court [2011] I.R.504, 518, “ There is nothing in the Constitution which requires all and every, or any, decision of the mental health tribunal to be reviewed by the courts under a statutory scheme.” In short, even if the Act of 2001 did not provide an appeal mechanism in respect of mental health tribunal decisions concerning admission orders, this would not render s.19 invalid. Nor are the afore-mentioned provisions of the Constitution even engaged. And even if they were engaged, s.19 appears to the court to vindicate Ms F’s rights. Certainly, as mentioned previously above, Ms F has failed to rebut the presumption of constitutionality that attaches to the Act of 2001, including s.19, by virtue of Pigs Marketing Board , op. cit.

XIV. Section 19 breaches the European Convention on Human Rights?
(i) Overview.

16. Though it was initially alleged that s.19 contravenes various provisions of the European Convention on Human Rights, by the time of the hearing this appeared to have shrunk to a contention that Article 5 of the Convention is contravened. Thus, although the court perceives no violation of the Convention to arise, it confines itself here to a consideration of the contention that Article 5 is contravened.

(ii) Article 5 of the Convention.

17. The case-law of the European Court of Human Rights (see, for example, Lukanov v. Bulgaria, (App. No. 21915/93, 20th March, 1997), and McKay v. United Kingdom [GC] (App. No. 543/03, 3rd October, 2006) identifies that the key purpose of Article 5 of the Convention is to prevent arbitrary or unjustified deprivations of liberty. In order to meet the requirement of lawfulness, the detention must, per Art. 5 be “ in accordance with a procedure prescribed by law ”. This means (see, for example, Del Rio Prada v. Spain, (App. No. 42750/09, 21st October, 2013) that the process of detention must conform with substantive and procedural rules of national law. The within proceedings are not concerned with the lawfulness of Ms F’s detention. Hence Art. 5 of the Convention is not engaged. But even if it were, all of the statutory protections and procedures of the Act of 2001 were made available to, and pursued by, Ms F. The fact that the admission order (Order A) had been supplanted by the renewal order (Order B) by the time her appeal came on for hearing before the Circuit Court does not alter that fact. And it is in this regard that a critical departure arises between the facts of the within proceedings and those in Nakach v. The Netherlands (App. No. 5379/02, 30th September, 2005), a case on which some reliance was placed by Ms F. For in Nakach it was a breach of domestic law that was held to yield a breach of Art. 5(1); here no like breach of domestic legislation presents.

18. The court notes: (i) the observation of the Supreme Court in In re Philip Clark [1950] I.R. 235 concerning the Mental Treatment Act 1945, the forerunner of the Act of 2001, that the Act of 1945 was “ designed for the protection of the citizen and for the promotion of the common good ”; (ii) the related observation of Charleton J. in Han that “ This purposive interpretation continues into every analysis of the successor of the Mental Treatment Act 1945 namely the Mental Health Act 2001”; and (iii) the observation of McMahon J. in CC v. Clinical Director of St Patrick’s Hospital and the Mental Health Commission [2009] IEHC 13, 28, that “[T] he reading of the Menatla Health Act 2001 , in its entirety… clearly establishes a procedure for continuous and regular assessment and supervision of the detention of a person under that legislation in a manner which wholly conforms to the requirements of Article 5(1) of the Convention…”. Here, not only was there compliance with the procedural safeguards set out in the Act of 2001; the Act of 2001 itself is in conformity with the Convention. In short, the court concludes that (a) Ireland has not breached its positive obligation, under Art. 5 of the European Convention, to protect Ms F against interference with her liberty, and (b) the provisions of s.19 are not incompatible with the Convention.

XV. The Oireachtas does not legislate in vain.
19. Ms F urges upon the court that the President of the Circuit Court ought to have heard the appeal on 10th November because, to echo McMenamin J. in DPP v. J.C. [2015] IESC 31, at para. 8 of his judgment, “ The Oireachtas does not legislate in vain ”. Thus Ms F submits that as the legislative purpose of s.19 was to provide for an appeal to the Circuit Court, the Act must be interpreted to give effect to that purpose. However, the Act does not provide for an unconstrained right of appeal to the Circuit Court. Why would the Oireachtas provide that regardless of whether an admission order (Order A) is supplanted or not, regardless of whether it is extant or not, and despite the fact that no remedy is available to a patient under s.19(4), she must still be given her day in court because she had lodged a notice of appeal? That would be irrational and legislation must be construed so as to give it a rational meaning. The court considers that the interpretation it affords the Act of 2001 in this judgment gives it just such a meaning.

XVI. Purpose of the Act of 2001.
20. Ms F contends that that the court should have regard to the purpose of the Act of 2001 in approaching its interpretation of same. The overriding purpose of the Act of 2001 is to provide a calibrated system whereby persons may be involuntarily admitted to detention, subject to independent review of every such admission. Ms F has pointed to a certain imperfection in the system established by the Act, viz. that it is possible for an appeal to arrive in the Circuit Court against a lapsed admission order and during the currency of an extant renewal order. However, no matter how a statutory scheme is constructed it will always be possible to point to a different way in which it could have been structured. It may even be possible to point to a different way that is consistent with the purpose of the Act. But it is not for an unelected court, in purported observation of the purpose of an Act, to devise alternative processes to such lawful processes as are established by our elected lawmakers through the medium of such Act.

XVII. Vindicating the rights to liberty and equality.
21. Given that the renewal order (Order B) was affirmed on 16th November, 2015, by a mental health tribunal (a decision that was itself later affirmed by the Circuit Court on 15th December, 2015, the court does not see how Ms F can claim that her right to liberty was not vindicated. Moreover, if there was some failure in any one instance which saw the right to liberty unlawfully infringed, notwithstanding the various protections for patients that the Act of 2001 seeks to establish, a patient always has a right to bring an application to the High Court under Article 40 of the Constitution, though hopefully the instances in which this drastic solution would be required would be very small in number, if indeed they arose at all. The right to equality has been treated with in the context of the alleged discrimination referred to above.

XVIII. Fashioning reliefs.
22. The issue of fashioning a relief does not arise as all reliefs sought are being declined.

XIX. Conclusion.
23. The court does not see any unlawfulness to present in how the Circuit Court acted in this matter. Insofar as any inefficiency might be perceived to arise in a process which can see an appeal against a lapsed admission order (Order A) arrive in the Circuit Court at a time when an appeal against a later extant renewal order (Order B) is imminent or can be anticipated, it appears to the court that such inefficiency can be, and apparently is in practice, overcome by the parties to the appeal agreeing that a notice of appeal against Order A should be amended so as to make it an appeal against Order B. This only works, of course, if the appeal is heard after the mental health tribunal has already sat and affirmed Order B; otherwise there can be no appeal under s.19(1). However, in the event that the tribunal has not so affirmed by the time the appeal arrives for hearing before the Circuit Court, there is nothing to stop the Circuit Court (a) adjourning the appeal pending the determination of the tribunal, an approach that should limit wasted time in the event of the tribunal affirming the detention, or (b) if and as the Circuit Court deems appropriate, having regard to the circumstances arising, striking out matters with no further order. It may be that the need for such practical ‘work-arounds’ could be obviated by means of a future amendment to the Act of 2001 which made provision for the instance where an appeal against a lapsed admission order (Order A) arrives before the Circuit Court during the currency of extant renewal order (Order B) but that is a matter well beyond the remit of the court.

XX. Refusal of Reliefs Sought.
24. For the reasons stated above, the court respectfully declines to grant any of the reliefs sought by Ms F. The court will hear the parties on the issue of costs.

X.Y. (a minor) v Health Service Executive

[2013] IEHC 490
Judgment of Mr. Justice Birmingham delivered on 7th day of November, 2013.
1. In this case the plaintiff seeks a declaration that s. 25(6) of the Mental Health Act 2001 is repugnant to the Constitution or, alternatively, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 25(6) is incompatible with the European Convention on Human Rights. Also sought is a declaration that the forcible administration of treatment to the plaintiff and her physical restraint by the defendant since her admission to hospital is unlawful.

2. The issues that arise for consideration now are a sequel to an earlier judgment delivered by me on the 16th January, 2013, in Re X.Y. [2013] 1 I.L.R.M. 305. There, I set out the facts in some detail and this judgment should be read in conjunction with that judgment, but to recap, the plaintiff is now sixteen and a half years of age. She has been diagnosed with bipolar affective disorder. The plaintiff was hospitalised on a number of occasions and on the 3rd July, 2012, she was transferred from an adult psychiatric unit to Merlin Park Child and Adolescent Mental Health Service Inpatient Unit following a suicide attempt. Of note is that on the 15th October, 2012, the Health Service Executive (HSE) made an application for an order pursuant to s. 25 of the Mental Health Act providing for her detention. The plaintiff minor was not present in Court for the hearing nor was she legally represented. However, her parents were present and consented to the order sought. A letter from the plaintiff setting out her views was submitted to the Court and considered by Judge Mary Fahy of the District Court.

3. In October 2012 the plaintiff was prescribed Olanzapine. On occasions she refused to take the prescribed medication and on these occasions the medication was administered by injection, which involves physical restraint.

4. On the 5th November, 2012, the defendant, for reasons set out in greater detail in the earlier judgment, was anxious to obtain a blood sample from the plaintiff. However, she refused to provide one. In these circumstances, the defendant applied ex parte for an order permitting the taking of blood samples forcibly. The taking of blood samples is regarded as necessary to guard against the development of very serious side effects which can be associated with anti-psychotic medication. I adjourned the application so that the plaintiff could be separately represented, appointing a solicitor to act as guardian ad litem for her. The solicitor in question is highly experienced in this area of law. She was, as I have indicated, originally appointed as guardian ad litem, but in fact in the course of the present proceedings has performed the role of legitimus contradictor and communicated the views of the plaintiff to the Court, but did not express her own views in the course of the proceedings as to what was in the plaintiff’s best interests. A number of medical reports were commissioned by the solicitor guardian which were submitted to the Court. These independent reports did not take issue with the appropriateness of the plaintiff’s treatment regime. The matter came on for hearing on the 6th December, 2012 and I delivered judgment on the 16th January, 2013, authorising the HSE to obtain a blood sample.

5. The order of the District Court was extended on the 31st October, 2012 for a three month period. The matter was back before the District Court on the 28th January, 2013, when the order was extended for a period of approximately three weeks. On this occasion a guardian ad litem, Mr. Raymond McEvoy, was appointed and the Court sought a report from Dr. Delia McGuinness, Consultant Child and Adolescent Psychiatrist. On the 20th February, 2013, the order was extended once more and it was further extended on the 23rd April, 2013 for a period of approximately three months to the 9th July, 2013. On that occasion a video link was put in place so that the plaintiff could speak directly to the judge of the District Court dealing with the matter, Judge Mary Fahy.

6. The plaintiff remains in Merlin Park Hospital on foot of an order of the District Court.

7. Insofar as the treatment she has been receiving is concerned, when she was first admitted to CAMHS Merlin Park Hospital Galway, the medication that she had been on, Aripiprazole (a mood stabiliser) was continued but, subsequently, this was discontinued after a period at the suggestion of the plaintiff. On admission to hospital the plaintiff was commenced on the Dialectical Behaviour Therapy Programme, which is a programme for people with severe suicidal ideation and a history of self harm. In August 2012, the plaintiff was commenced on a trial of Quetiapine (antipsychotic medication) and on the 31st August, 2012, she was commenced on a liquid form of Quetiapine. In October 2012, the plaintiff began to refuse medication. In that context it is of some significance that she spoke to hospital staff about her belief that taking the medication would reduce her capacity to formulate and execute the plans that she had for her suicide. The plaintiff’s treating consultant, Dr. Dermot Cohen, sought an expert pharmacological opinion from Professor David Taylor, who is Professor of Psychopharmacology at King’s College London and Maudsley Hosptial. Dr. Taylor recommended Olanzapine. The plaintiff refused to take her medication, and it was deemed necessary on these occasions to physically restrain the plaintiff so that the medication could be administered safely.

8. Sadly, the plaintiff remains at high risk of suicide. There is, I believe, a broad consensus that it would be highly dangerous for her to be discharged from hospital at this stage and doing so would put her life at serious risk.

9. The plenary summons and statement of claim seek declarations that s. 25(6) is repugnant to the Constitution and incompatible with the European Convention on Human Rights, and a similar approach was taken in the written submissions filed on behalf of the plaintiff. However, a very different note was taken by counsel for the plaintiff in his oral submissions. On this occasion counsel indicated that it was possible to, as he put it, square the circle and achieve what was sought by less radical means than declarations of repugnancy or incompatibility, referring in that regard to the approach of Hogan J. in B.G. v. District Judge Murphy [2011] 3 IR 748.

10. The case to which counsel referred and which it is suggested could serve as a model for how this case could be dealt with was an interesting one. Hogan J. was dealing with a situation where the applicant had been charged with the indictable offence of sexual assault. The Director of Public Prosecution was prepared to see the case dealt with in the District Court on a plea of guilty. However, there were doubts about the applicant’s mental capacity and so the District Court judge dealing with the case could not be satisfied that the applicant understood the nature of the offence with which he was charged, which was a necessary requirement in order for a plea of guilty to be entered and accepted. In these circumstances the applicant was sent forward to the Circuit Court so that the issue of fitness to plead could be determined. The difficulty for the applicant was that even if the Circuit Court found him fit to plead, he was no longer in a position to have the case dealt with summarily, as this option was closed to him once the case was sent forward from the District Court to the Circuit Court, and, accordingly, he was now at risk of having a far more severe penalty imposed on him than he would have faced had the case been dealt with in the District Court.

11. Hogan J. was of the view that Article 40(1) of the Constitution had been violated in that the Oireachtas had failed to have proper regard to the rights of those whose mental capacity was uncertain as it failed to provide a mechanism whereby persons charged with indictable offences, whose fitness to plead was later established in the Circuit Court, could obtain the benefit of a guilty plea in the District Court in the same way as was available to those whose mental capacity was not in doubt. Hogan J. was of the opinion that the classic response, the striking down of the relevant statutory provision, was not the only possible remedy. In those circumstances, Hogan J. made an order declaring that if the applicant was found fit to be tried and subsequently pleaded guilty, that his constitutional right to be held equal before the law would be breached if the sentencing Circuit Court Judge imposed a sentence in excess of the statutory District Court maximum. By analogy to the approach taken by Hogan J., counsel was of the view that the requirements of the present case could be met by declarations dealing with the necessity for the District Court to appoint a guardian ad litem and for the guardian to obtain and put before the Court independent expert medical reports and that when particular forms of treatment were regarded as appropriate or necessary, that this would be communicated to the Court and its approval sought.
The argument that the section is unconstitutional and/or incompatible with the Convention
12. Even though, in circumstances which I have already outlined, arguments to this effect have not really been pressed, I will address this aspect first.

13. The argument made is that the statute contemplates the detention of minors under the Mental Heath Act without providing any, or certainly any adequate safeguards for a minor who is objecting to detention and thereafter for the forcible administration of medication. Indeed, it is said that this is graphically illustrated by what has happened in the case of X.Y. It is said that there are, with the exception of specific statutory provisions in relation to psychosurgery and electro-convulsive therapy, no procedural safeguards in relation to treatment and that this is in conflict with fundamental constitutional principles and is also clearly incompatible with the European Convention on Human Rights.

14. On behalf of the plaintiff it is argued that she, and other minors in a similar position, enjoy lesser protection than would be available to adults and it is said that this is an unjustified, arbitrary and, indeed, invidious form of discrimination. In that regard, counsel points in particular to the fact that children do not have their detention reviewed by the Mental Health Tribunals, that the District Court can and does act on the report of a single psychiatrist who may be the treating psychiatrist and that there is no statutory obligation to notify the Mental Health Commission of the making of the order under s. 25.

15. In my view, the suggestion that s. 25 is so lacking in procedural safeguards and that it treats children in a less favourable way than adults are treated is without foundation. On the contrary, s. 25, when read on a stand-alone basis, but more particularly when read in conjunction with the provisions of the Child Care Act 1991, as it ought to be, provides significant safeguards. Section 25(1) requires the making of an application to the District Court before the initial order providing for detention is made. Manifestly, the District Court is an independent forum, each of the judges of that Court having made a solemn declaration to uphold the law and the Constitution. Section 25(2) provides that ordinarily the child must be examined by and be the subject of a report from a consultant psychiatrist, who must not be a relative of the child. Where that is not possible, an alternative procedure is provided. In relation to s. 25(6), the order made by the Court provides that a child be admitted and detained for treatment (my emphasis) in a specified approved centre for a period not exceeding twenty one days.

16. Section 25(7) provides that an application may, if the Court is satisfied that the urgency of the matter so requires, be made ex parte. It will be noted that it is only if the Court is satisfied that the urgency of the matters so requires that the application can be made ex parte. In other circumstances the application has to be made on notice. In this context, the provisions of s. 4 of the Mental Health Act 2001 are very much in point. That section provides as follows:

“4(1) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.
(2) Where it is proposed to make a recommendation or an admission order in respect of a person, or to administer treatment to a person, under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and be entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this subsection.

(3) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.”

The section deals with care and treatment of persons and does not make any distinction between adults and children. Accordingly, in making decisions concerning the care or treatment of children, the best interests of the child should be the principal consideration and the child is, insofar as is reasonably practical, to be notified of what is proposed and is entitled to make representations and those representations are to be given due consideration before any decision is made.
17. Section 25(8) provides that between the making of an application for an order under the section and its determination, the Court can of its own motion or an application of any person (my emphasis) give such direction as it sees fit in relation to the care and custody of a child. The phrase “any person” is clearly broad enough to include parents and family members of a minor, persons acting in the role of guardian ad litem and performing similar roles and, indeed, the minor herself. Section 25(9) provides for the possibility of further orders providing for detention not exceeding three months and s. 25(10) for a further detention for a period of six months. It should be noted that these further detention periods are maximum periods, rather than minimum or stipulated periods and can be made only on foot of further applications and reviews by the independent forum that is the District Court. Further detention can only be ordered if a report from a consultant psychiatrist is presented to the Court and the Court is satisfied that the child is still suffering from a mental disorder. Sub-sections (12) and (13) provide that psychosurgery or electro-convulsive therapy (ECT) cannot, in the case of a minor, take place without the approval of the Court. Insofar as the plaintiff has contrasted the position of a child and an adult under the Mental Health Act, the provisions in relation to psychosurgery and ECT are protective of the child, taking a paternalistic approach to the child as, unlike in the case of an adult, the consent of a minor is not sufficient and the approval of the Court itself is required. In contrast in the case of ECT, this can occur if an adult patient gives consent, while in the case of psychosurgery, the consent of a Tribunal is sufficient. A similar differentiation is to be found in the case of long-term medication. Long-term medication can be prescribed to an adult patient, either on the basis of written consent from the patient, or if that is not forthcoming, on the basis of an authorisation from a consultant psychiatrist other than the treating one, but in the case of a child, the child’s consent is insufficient and only a second psychiatrist can authorise long-term medication. Again, this is indicative of an approach to minors on the part of the legislature which is paternalistic and protective. X.Y. is currently prescribed medication in accordance with the provisions of s. 61 of the Mental Health Act 2001. Specifically it is the case that Dr. Delia McGuinness, Consultant Child and Adolescent Psychiatrist, authorised continuing medication. She had been asked by the District Court to provide a second opinion in relation to the treatment of the plaintiff.

18. The plaintiff is dismissive of the significance of the provisions of the Child Care Act incorporated by s. 25, subs. (14), saying that the provisions of the Child Care Act 1991 that are incorporated add little, if anything, to the provisions of the Mental Health Act. It is said that s. 24 of the Child Care Act, with its requirement that the welfare of the child be the primary consideration, adds nothing to what had already been provided by s. 4 of the Mental Health Act. Section 25 of the Act of 1991 is merely a power to join the child as a party and this is not something that is likely to happen all that often in the mental health area. Section 26 of the Act of 1991 merely permits a guardian ad litem to be appointed but does not mandate or require this to happen. Again, section 27, it is said, merely permits the Courts to procure a report but does not mandate or require this. The plaintiff says that this permissive approach is to be contrasted unfavourably with the requirement to obtain a report in the case of an adult.

19. In my view, the plaintiff is unduly dismissive of the significance of the Child Care Act provisions. It is true that the Child Care Act, the provisions of which were incorporated in the Mental Health Act 2001, does not in terms mandate the joining of the minor as a party or the appointment of a guardian ad litem, but it must be recalled that the District Court is mandated and is required to regard the welfare of the child as the first and paramount consideration and is mandated in so far as practicable , to give due consideration, having regard to his or her age and understanding, to the wishes of the child.

20. I will be addressing issues relating to the European Convention on Human Rights more specifically presently. However, at this stage I would simply refer to the fact that on behalf of the plaintiff it has been acknowledged, and rightly so in my view, that the Constitution provides for at least arguably greater procedural safeguards for the individual than those required by the European Convention on Human Rights. That is not to ignore the fact that constitutional interpretation is informed and influenced by the European Convention on Human Rights, an international agreement to which the State has acceded. In that regard, I refer to the judgment of M.X. (APUM) v. HSE and Ors. [2013] 1 I.L.R.M. 322, in which MacMenamin J. observed as follows (at para. 72):

“As in the Irish and ECtHR authorities identified, I believe the broader range of constitutional ‘personal capacity rights’ identified earlier, now fall to be informed by the United Nations Convention on the Rights of Persons with Disabilities, as well as the principles enunciated in the judgments of the European Court of Human Rights.”
The views expressed by MacMenamin J. are of considerable interest, particularly given that they were expressed in the context of consideration of provisions contained in the Mental Health Act. But it must be said that they are not at all novel, indeed they mirror closely observations made by Costello P. in R.T. v. Director of Central Mental Hospital [1995] 2 I.R. 65.
21. In my view, judges in the District Court to whom applications are made will be very aware of the importance attached both domestically and internationally to hearing the voice of the child. The European Convention on Human Rights Act 2003 requires that judicial notice be taken of decisions of the European Court of Human Rights. Accordingly, one can be confident that courts will have regard to and be influenced by ECtHR jurisprudence when considering matters such as whether to join the child as a party, whether to appoint a guardian ad litem or whether to seek an independent report.

22. In the present case, when the matter was before the District Court on the 15th and 31st October, 2012, letters written by the plaintiff were handed to the judge and the judge, it seems, specifically referred to the views of the plaintiff and to the fact that she was expressing the view that she did not wish to be in a mental health facility. The plaintiff’s parents were present, and supported the making of the order.

23. It does seem to me that the arguments on behalf of the plaintiff do not take into account the central role of parents when it comes to the taking of decisions in relation to their child and their central role in determining if it is in the best interests of a child. It will ordinarily be the case that decisions in relation to a child’s medical treatment will be taken on behalf of a child by his or her parents. That is so whether the child has or has not mental health issues.

24. In the course of her judgment in Re Ward of Court (No. 2) [1996] 2 I.R. 79, Denham J., as she then was, commented as follows (at p. 156):

“Medical treatment may not be given to an adult person of full capacity without his or her consent . . . if the patient is a minor then consent may be given on their behalf by parents or guardians. If the patient is incapacitated by reason other than age, then the issue of capacity to consent arises. In this instance, where the patient is a ward of court, the court makes the decision.”[Emphasis added]
25. The written submissions in this case and both the written and oral submissions in the earlier X.Y. case had focused attention on the position of the so-called “Gillick” competent minor, a reference to the very well known case of Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112. However, in my view, this is a case where context is all. It seems to me that the considerations that apply in deciding whether a sexually active teenager should be permitted to access contraception are of an altogether different order to those that apply in deciding whether a troubled teenager should be permitted to refuse medical treatment so as to advance a determination to commit suicide. A capacity or entitlement to refuse is not necessarily to be equated with a capacity or entitlement to consent to treatment.
26. Returning to the history of the present case, on the 5th November, 2012, Ms. O’Shea was appointed by the High Court to respresent the plaintiff, and a guardian ad litem was appointed by the District Court on the 28th January, 2013. It is noteworthy that no information has been put before either the District Court or this Court by the guardian or anyone else to suggest that the plaintiff’s detention and the treatment she is receiving is not in her best interests. As we have seen, on the 28th January, 2013, Dr. Delia McGuinness, Consultant Child and Adolescent Psychiatrist, at West Galway Child and Adolescent Mental Health Service, provided a second opinion in relation to the treatment being provided.

27. When the HSE wished to take blood samples which were necessary if the prescribed medication was to be administered safely, the HSE brought the matter before the High Court. Ms. O’Shea proceeded to instruct junior and senior counsel who advanced the plaintiff’s views. Even though those views did not carry, the day an order was made, without opposition, that the guardian’s costs should be met by the HSE. The matter was again brought back before the High Court on the 19th February, 2013 when the guardian sought clarification of legal issues in relation to restraint in the aftermath of the earlier decision. Again an order was made without opposition, providing for payment of the guardian’s costs by the HSE. The minor has exercised her right of access to the courts in order to have her views on her treatment considered.

28. It seems to me that the history of this case shows that the safeguards in the Mental Health Act and those contained in the Child Care Act which were incorporated by s. 25(14) are not only capable of working but do in fact work in practice. That is not to say that the legislation could not be improved upon, and that the protections that are available and must be available to the minor could not with advantage be spelt out with greater specificity. However, that does not provide a basis for a constitutional challenge.

29. In relation to the argument that children are the subject of invidious discrimination, it is certainly the case that the procedures applicable to children are significantly different to those that apply to adults. However, viewed in the round, I am not at all convinced that the position of children is inferior. The provisions of the Child Care Act which I regard as being of real and substantial value have no application to adults. The role of the District Court is specific to children. It seems to me that the role played by the District Court and the option of an appeal to the Circuit Court and, indeed, the possibility of judicial review, are at least the equal of what is provided in the case of adults through the Mental Health Tribunals. This is a case where a diversity of arrangements has been provided and that that should be so is not at all surprising. Indeed, it is entirely to be expected that different arrangements would be provided for children, given that the children that we are dealing with are particularly vulnerable because of their young age and their mental health difficulties.

30. The arguments specific to the European Convention on Human Rights have relied heavily on the case of X v. Finland, (Application no. 34806/04, 3rd July, 2012). It may be said that the factual background to that case could scarcely be more different as it involved a paediatrician whose compulsory hospitalisation in a state mental hospital began when, in the course of her medical practice, she met with a mother and daughter, the daughter having allegedly been sexual abused by her father. The paediatrician allegedly assisted the mother to remove her daughter from care. Thereafter, X was charged with the offence of involvement in kidnapping. The path then taken was a somewhat unusual one, in that the criminal proceedings were brought to a conclusion because it was determined that the applicant’s mental state was such that she lacked capacity to be held criminally responsible. However, in the course of the proceedings she was transferred to a mental hospital where she was detained, diagnosed as suffering from delusional disorder and judged to meet the criteria for involuntary confinement. When she refused to take medication that was prescribed, she was forcibly injected. Thus, the starting point for the controversy was criticism of Ms. X’s response as a professional to an allegation of child sexual abuse that was presented to her. This brought her into conflict with the prosecution system, the court system, the mental health service and the medical staff at Vanha Vaasa Hospital where she was detained.

31. While the factual background to the X v. Finland case contains some quite unusual features, of more direct relevance is to consider the criticisms made by the ECtHR of the Finnish mental health system. The ECtHR was of the view that the initial confinement of a “forensic” patient after a psychiatric examination, and the involuntary treatment in a mental hospital by the Forensic Psychiatry Board of the National Forensic Medical Authority, whose decisions were subject to independent judicial review, were not problematic from the point of view of the rule of law. However, crucially the court was critical of the fact that when it came to continuation of such treatment that there was no adequate safeguard against arbitrariness.

32. The present situation is quite different. The initial order providing for detention for treatment was made by an independent body, indeed made by a court. It is a decision which is subject to appeal and, indeed, is subject to judicial review. The decision, if made, is time limited, it can be made for a maximum period of twenty one days. There are also clear restrictions on the circumstances in which an order can be made. It is not, of course, sufficient that a child is suffering from mental disorder. But it is also necessary that the child requires treatment for that mental disorder which he or she is unlikely to receive unless an order is made under the section. An order cannot be made if an alternative treatment programme which meets the child’s needs can be delivered. The order can be made only if that is required. In effect the order can be made only if there is no alternative.

33. In contrast to the situation in Finland, the order, if it is to be extended, will be extended on foot of a further order of an independent body. A further difference from the situation that appeared to prevail in Finland is that by virtue of the provisions of s. 47 of the Child Care Act 1991, the District Court may on its own motion or on the application of any person, and obviously that includes parents, family members, guardians ad litem, and, indeed, minors themselves, give directions or orders to vary or discharge any direction or order made. Thus, the situation in Ireland is that the independent body that is the District Court is at the heart of the detention for treatment at all stages. In contrast, the situation in Finland appeared to be that a patient detained did not have any possibility of initiating proceedings in which the issue of whether the conditions for his or her confinement were still met could be examined.

34. The ECtHR commented that the situation under consideration was aggravated by the fact that in Finland a care order issued for the involuntary hospitalisation of a psychiatric patient was also understood to contain an automatic authorisation to treat the patient even against his or her will and a patient could not invoke any immediate remedy in that respect.

35. Again, the situation in Ireland is quite different. The order made by the District Court is one that provides for detention for treatment. There is no question of detention other than for treatment, so the question of treatment is the concern of the District Court from the outset. It is open thereafter to the Court on its own motion or on the application of any party to give directions as to the procuring of a report. As the present case has shown, this is a provision that is capable of being used for the purpose of obtaining an independent second opinion on the appropriateness of treatment. Again, the provisions of s. 47 of the Child Care Act 1991 to which I have referred provide a route by which any party, who might wish to do so, can seek to have conditions imposed in relation to treatment.

36. In summary, it is my view that the provisions of s. 25 of the Mental Health Act are capable of being implemented in a manner that is fully constitutional and Convention compliant. It is to be expected and assumed that the legislation will be operated in just that fashion. In these circumstances the plaintiff is not entitled to an order declaring the section to be repugnant to the Constitution or to a declaration that the section is incompatible with the Convention.

37. The view that I have reached is based on my expectation that the Act will be implemented in the way that I have indicated. Indeed, a failure to do so might well render orders made susceptible to challenge. The HSE, which initiates s. 25 applications, has a particular interest in ensuring that orders made are robust and not susceptible to challenge. For that reason it would seem desirable that the HSE would adopt a practice of drawing the attention of the Court and the parties to the provisions in relation to the appointment of a guardian ad litem, so that the desirability of adopting this approach in a particular case or perhaps adopting some suitable alternative, such as joining the child as a party, can be considered.

38. I would simply add the observation that had I found it necessary to declare s. 25 unconstitutional, that this would not have served the plaintiff’s interests. This would not have grafted on the procedural safeguards that the plaintiff seeks, rather it would simply have struck the section down.

39. If a consequence of a declaration of unconstitutionality was that the plaintiff’s treatment in hospital was terminated, then this would very likely have very serious, indeed quite possibly, fatal consequences.
A case for the making of declarations
40. I have considered carefully whether this is a case where it would be appropriate to make declarations as suggested by counsel for the plaintiff and for a number of reasons I have decided that that would not be appropriate. In the first place, declarations made now would not provide any practical advantage for the plaintiff. At this stage, X.Y. is assisted by a guardian ad litem. The District Court has commissioned an independent report seeking a second opinion in relation to her treatment. There is every reason to believe that the regime to which X.Y. is subject serves her best interests. She will have an opportunity to canvass any concerns that she has in relation to her treatment when the matter is listed again before the District Court. Equally, the plaintiff has the opportunity to raise issues in relation to the appropriateness of her treatment in the High Court. To date, the opposition on her behalf has been confined to procedural issues and specifically to an alleged lack of adequate procedural safeguards. However, it may be that the plaintiff will seek to address the appropriateness of the treatment that she is receiving. In other words, address the merits of the issue at some stage and if so, that is an option that is open to her.

41. This is a situation where making the declarations sought would not offer the plaintiff any practical advantage. It seems to me that to attempt to formulate declarations in a vacuum would be inconsistent with the requirement for judicial restraint. The situation is the precise opposite to that which faced Hogan J. who tailored declarations designed to provide a practical remedy to the plaintiff, Mr. B.G.

42. It is also the situation that where various options are available to the Court, such as joining the minor as a party, commissioning reports, or appointing a guardian ad litem, it seems to me that it would not be possible to formulate declarations that would not be unduly prescriptive. Alternatively, the declarations would be in such broad terms referring to the need to follow procedures that were fair and transparent that nothing would be added to the existing law. I am also conscious that the circumstances in which applications under s. 25 are brought before the Court are likely to vary greatly. In that regard, the situation of X.Y. is atypical. Here, X.Y. has had a lengthy stay in hospital and has received treatment over a prolonged period. The initial application to the District Court goes back as far as the 15th October, 2012. However, the average duration of a hospital stay for a minor detained under the section was, it appears, seventeen and a half days. It may be that at the time of the initial application to the District Court in a particular case that there will be an expectation that any period of hospitalisation will be brief, perhaps very brief. On the other hand, there may be cases where symptoms are so severe that the expectation will be of an extended stay. These factors will obviously influence the selection of appropriate procedures. However, whether the expectation is of a short-term or extended stay, the Court will need to follow procedures that are fair and which will allow the child’s voice to be heard. Again, it does not seem to me possible to prescribe procedures that would be appropriate for all of the different situations that may arise. In summary, as I am declining to make the declarations sought in relation to unconstitutionality and incompatibility, and as I do not propose to make the declarations sought, I must dismiss the plaintiff’s claim.

The State (C.) v. Minister for Justice.

 

O’Dalaigh C.J. [1967] IR 111
Supreme Court

These proceedings had their origin shortly after the appellant’s transfer from St. Brendan’s Mental Hospital to the Central Mental Hospital. The appellant’s mother in October, 1965, wrote to the Governor of St. Patrick’s Institution complaining of this transfer. In the course of her letter (which is undated) she said: “My son is not mad, only a fire bug . . . I demand him back to St. Brendan’s . . .” The letter was forwarded by the Governor to the Department of Justice, and in a reply on behalf of the Minister for Justice it was stated that, having considered all the circumstances of the case, the Minister was satisfied that it was in her son’s interest, as well as the public interest, that he should not be moved from the Central Mental Hospital, that his case would be kept under review and, should the medical authorities advise a change, the necessary steps would be taken to have him transferred. The matter appears to have rested there until the 3rd February, 1967, when the conditional order of habeas corpus was obtained. A conditional order of certiorari was also made on the same date but, as the appellant did not seek to make it absolute, it was later discharged. The Attorney General was given notice by the appellant, pursuant to Order 60 of the Rules of the Superior Courts, 1962, of his intention to raise the question of the constitutionality of s. 8 of the Criminal Justice Act, 1960, and the Attorney General appeared by counsel to support the constitutionality of that section and, in this Court, to support in addition the constitutionality of s. 13 of the Lunatic Asylums (Ireland) Act, 1875.
The appellant has challenged the constitutionality of s. 13 of the Act of 1875, and a consideration of this question must take priority over the other submissions on his behalf. Article 50, section 1, of the Constitution provides that”Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Sacrstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.” It was assumed by Counsel in argument, without examination of the terms of the Constitution of Sacrstát Éireann , that s. 13 of the Act of 1875 was continued in force in Sacrstát Éireann by virtue of Article 73 of the Constitution of Sacrstát Éireann which is drawn in the same terms as section 1 of Article 50 of the Constitution of Ireland. The considerations advanced to establish that s. 13 of the Act of 1875 is inconsistent with the Constitution of Ireland might equally be advanced to show that the section was not continued in force by the Constitution of Sacrstát Éireann . This, however, is a matter that need not now detain us: if the section is inconsistent with the Constitution of Ireland it will not be necessary to go further back.
Section 13 of the Act of 1875 is in these terms:”It shall be lawful for the Lord Lieutenant, by warrant under his hand, to order that any person who shall have been remanded by a justice or justices of the peace for further examination, and who during the period of such remand shall be certified by two physicians or surgeons or a physician and a surgeon to be of unsound mind, shall be removed to the district lunatic asylum established for the district in which such person shall be confined; and such person shall when so removed remain under confinement in such asylum untilit shall be in like manner certified that such person has become of sound mind, whereupon the Lord Lieutenant is hereby authorised to issue his warrant directing that such person be remitted to the prison or place of confinement from which he was removed to the asylum, and be brought before the justices before whom he was ordered in the warrant of remand to be brought for further examination.”
The submission of counsel for the appellant was, briefly, that s. 13 constitutes an interference by the executive in the working of the courts; and, in reply, counsel for the respondents argued that the section was not an interference in the working of the courts but an intervention both in the interests of the accused and of the public because of his mental illness. The section restores the accused to the court as soon as he regains his sanity. Sect. 13 falls into three distinct parts. Under the first part the Lord Lieutenant makes an order for the removal of the remand prisoner to the district lunatic asylum; then, in the second part, the section provides what the period of confinement of the prisoner in the district lunatic asylum is to be when he has been so removed; and, thirdly, there is the machinery for the termination of the confinement and the remittal of the prisoner to the justice for the continuation of his examination. The first part of the section (the Minister’s order) does not impinge upon the court’s function of conducting its investigation; it does no more than alter the place of detention in the interest of the health of the prisoner and, one may assume, in the interest of better prison administration. The second part of the section then follows and, in effect, it says that the prisoner shall not be returned to court until the Minister makes a second order. The court’s original order for remand will have directed that the prisoner should re-appear for the continuation of his examination on a named day; the second part of the section in effect purports to discharge that order because of the prisoner’s insanity. If this is an unwarranted constitutional interference in the judicial domain it is, it seems to me, a legislative, and not all executive, interference. The interference arises not by reason of the Minister’s order, but independently by force of the statute.
The Constitution rests on a division of the powers of government under three broad headslegislative, executive and judicial: see Article 6. As O’Byrne J., delivering the judgment of the Supreme Court in Buckley & Others (Sinn Féin) v. Attorney General & Another (1), said:”The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise.” The administration of justice is committed to courts established by law Article 34, section 1, of the Constitutionand one of these courts is the District Court: see s. 5 of the Courts (Establishment and Constitution) Act, 1961.
The preliminary investigation of indictable offences is a stage in the administration of justice. There cannot be any question as to which side of the tripartite line of division of powers it falls: the preliminary investigation of indictable offences is in the judicial domain. Can the Legislature legitimately intervene to adjourn a preliminary investigation on the ground that the accused is of unsound mind?
Here our concern is not with insanity in its broad medical connotation, nor as a defence to a criminal charge, but as affecting the accused’s capacity to stand his trial and, more particularly, the initial stage of his trialviz., the preliminary investigation of the charges. The several steps in this investigation, as enumerated in r. 55 of the District Court Rules, 1948, are as follows:(i) the taking of depositions on oath and in writing from any person present who shall be able to give evidence concerning the matters in issue; (ii) the questioning of the witnesses by or on behalf of the accused; (iii) the noting of objections raised as to admissibility of evidence either by the prosecutor or the accused; (iv) the taking of depositions from any witness tendered on behalf of the accused.
It may be noted that the offence charged against the appellant under the Larceny Act, 1916, is a scheduled offence within the Criminal Justice Act, 1951, and could be disposed of summarily by the District Justice; and it may also be noted that the provisions of s. 3 of that Act, providing for the disposal in the District Court of indictable offences on a plea of guilty, might, in any event, be applied to all the charges here in question.

When a prisoner is being tried on indictment the registrar of the court, as soon as the indictment has been read out, demands of the prisoner “How say you; are you guilty or not guilty?” At this point the question of the accused’s fitness to plead or stand his trial arises. The nature of the insanity which excuses the prisoner from standing trial is examined in a number of cases. Stated in general terms the test to be applied is, has the prisoner sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he may wish to object, and to understand the details of the evidence: see Rex v. Pritchard (1); Rex v. Dyson (2); The Queen v. Berry (3); Rex v. Governor of Stafford Prison (4).A jury is empanelled to try the issue. This test, mutatis mutandis, is applicable in the case of District Court proceedings, whether on summary trial or by way of preliminary investigation. There can be little doubt that a District Justice must stop short if he is satisfied that the accused is insane in the sense already explained and this no less in a preliminary investigation than in a summary trial. On a preliminary investigation an accused person has important rights, which he must be in a position to exercise if the preliminary investigation is to be a valid basis for his return for trial. From the foregoing it will be plain that the range of insanity entitling an accused to avoid trial is quite limited.
Sect. 13 of the Act of 1875 does not distinguish between such insanity and insanity at large and, by a combination of the making of the first warrant and of the consequences which follow from it, the preliminary investigation is adjourned willy-nilly. In the year 1875 it was for an omnipotent parliament to determine what should be done in the case of a prisoner on remand who was discovered to be insane; no question could arise as to whether the provision made by parliament was or was not an intrusion into the judicial domain. It is otherwise now because the Constitution effects a separation of legislative, executive and judicial powers. Cases and circumstances will undoubtedly occur in which the lines dividing these several areas of government are difficult to discern; but in my opinion there is little room for debate as to the area in which a prisoner on remand is to be placed. He stands well within the clearly-marked borders of the judicial domain.
The provision of the Act, of 1875 (which takes the accused away from the Court’s disposal, sets at nought the Court’s remand and adjourns the preliminary investigation sine die)is about as large an intrusion upon a court proceeding as one could imagine. It is not lessened by the promise to return the accused some time in the future when two doctors certify sanity. It should also be observed that it is for the court that has seisin of a criminal matter to determine whether or not the accused is suffering from insanity of such a character as renders him unfit to stand his trial.
In the result, my judgment is that the second part of s. 13 of the Act of 1875 is inconsistent with the Constitution in requiring that the accused shall remain in confinement until certified to have become of sound mind. This inconsistency can be cured by the deletion of the words beginning “it shall be in like manner certified” in line 9 down to the words”and be” in the 14th line of the section inclusive, the rest of the section being left intact.
The appellant’s detention was effected under a court remand to the 13th September, 1965: that order is long since spent. Detention in a lunatic asylum under s. 13 of the Act of 1875, in so far as it has been carried over by virtue of Article 50 of the Constitution, cannot exceed the duration of the Court’s remand. The position, therefore, is that the appellant is not lawfully detained in the Central Mental Hospital and he must be forthwith released. For this purpose an order absolute of habeas corpus should issue.
If the appellant’s state of health is such that, in his own and in the public interest, he should be confined in a mental home, there are ample powers available to the authorities to effect this end. Wherever the appellant may be, he may be reached by warrant of the court that has seisin of his case which court should now re-enter the matter. If he is not now well enough to come to court, the District Justice may, under r. 60 (11) of the District Court Rules, 1948, adjourn the matter notwithstanding his absence. Mr. Justice Walsh has called my attention to the provision of s. 24, sub-s. 4, of the Criminal Procedure Act, 1967 which comes into force to-morrow. The sub-section provides that, if the court is satisfied that any person who has been remanded is unable by reason of illness or accident to appear or be brought before the court at the expiration of the period of remand, the court may in his absence remand him for such further period, which may exceed eight days, as the court considers reasonable. It need hardly be pointed out that it is open to the Attorney General, or other authorised prosecutor, to terminate a preliminary investigation by offering no evidence and thus requiring a refusal of informations, but leaving the way open for a renewal of the charges at a later date.

I may add briefly that I have no doubt that the authority conferred by s. 13 of the Act of 1875 on the Lord Lieutenant was conferred upon him not as representing the Crown, but as a named individual, and that his function is to be identified as an administrative function related to prisons. This latter character is sufficient to show that the Minister for Justice, as the Minister in charge of the administration of prisons, is now the authority under the new polity to exercise the power of the Lord Lieutenant so far as it has been continued in force: see s. 11, sub-s. 1, of the Adaptation of Enactments Act, 1922, and s. 1 (iii) of the Ministers and Secretaries Act, 1924, and the second part of the Schedule to that Act.

HAUGH J. :
I agree that the conditional order of habeas corpus should be made absolute for the reasons stated and to be stated.

WALSH J. :
[His Lordship, having stated the facts, continued as follows:]
According to the judgment of Mr. Justice Murnaghan, the right of the Minister for Justice to make an order under s. 13 of the Lunatic Asylums (Ireland) Act, 1875, was not questioned except in so far as it was suggested that there had not been a necessary adaptation instrument to permit the Minister to exercise the powers conferred by that section and formerly exercised by the Lord Lieutenant. The point was made on behalf of the appellant that the powers formerly exercised by the Lord Lieutenant must be treated as executive powers and that therefore the power given to the Minister under s. 8 of the Criminal Justice Act, 1960, could only be properly exercised by the Government rather than by the Minister. It was also submitted in the High Court that the power of determining whether or not the appellant was insane was a matter to be determined only by the Court once he was before the Court. Mr. Justice Murnaghan also took the view that the real complaint was not so much that the appellant was in custody in a mental institution but that he was in the Central Mental Hospital, Dundrum, rather than in St. Brendan’s. This was based upon a letter written by the mother of the appellant who asked that he be sent back to St. Brendan’s.
In this Court, counsel on behalf of the appellant submitted that s. 13 of the Act of 1875 had not been carried over by Article 50 of the Constitution as that section was inconsistent with the Constitution in as much as it amounted to an unconstitutional invasion, or infringement, of the judicial power in that the appellant had been deprived of his right to have the question of his sanity investigated by the Court before which he was appearing upon a charge; and that he had been deprived of the opportunity, to which he was entitled, of having his case decided having regard to the merits of the case by being removed from the Court; and that, whatever the rights of the appellant were, the rights of the Court to exercise its judicial power had been frustrated. It was also submitted that there had been no adaptation of the term “Lord Lieutenant” in the context of s. 13 of the Act of 1875 and that the power could not in any event be exercised by the Minister for Justice and that such a power was an executive power within the meaning of that phrase in the Constitution and could be, therefore, exercised only by the Government under the provisions of Article 28, section 2, of the Constitution.
With regard to the last point, it is my opinion that the fact that a statutory power is conferred upon a member of the executive or a representative of the executive, as was the Lord Lieutenant, does not make that power an executive power within the meaning of that expression in the Constitution as the statute might just as easily have conferred the power on anybody else. The executive power of the State is not the same as a specific ad hoc power conferred by statute upon a Minister or some other member of the executive. In my opinion this statutory power, conferred upon the Lord Lieutenant, is not one which falls within Article 28, section 2, of the Constitution. So far as the question of adaptation is concerned, counsel for the respondents drew the Court’s attention to the decision in The State (Tynan) v. The Governor of Portlaoise Prison (unreported: 3rd September, 1963) where it was held by the High Court that the term “Lord Lieutenant” had been adapted by s. 11 of the Adaptation of Enactments Act, 1922, and that the functions of the Lord Lieutenant in connection with Portlaoise Prison were now exercised by the Minister for Justice. That case came on appeal to this Court, but that point was not raised in the submissions made to this Court, nor was it touched upon in the judgment of this Court. In my opinion the submission made on behalf of the respondents is correct; i.e., that the function of the Lord Lieutenant under this section was one of those falling under law and justice etc. dealt with in the Provisional Government (Transfer of Functions) Order, 1922, and that, if the function is exercisable at all, it would be properly exercised by the Minister for Justice as the successor of the Minister for Home Affairs and by virtue of s. 11 of the Adaptation of Enactments Act, 1922, and s. 1 (iii) and the Schedule of the Ministers and Secretaries Act, 1924.
The substantial and important point in this case is the question as to whether or not the exercise of the powers conferred by s. 13 of the Act of 1875 is an interference with the exercise of the judicial power conferred by the Constitution and whether the section, to the extent to which it causes such an infringement, was inconsistent with the Constitution and was not carried over by Article 50 of the Constitution.
In my view s. 13 of the Act of 1875 applies only to persons who have been remanded in custody and not to those who may have been remanded on bail. It is during the period of such custody during remand that the certification by the two physicians may be made. The section did not make it mandatory on the Lord Lieutenant to issue his warrant even if such certificate had been issued by the two physicians. I am of opinion, however, that the section did make it mandatory upon the Lord Lieutenant, when he had issued a warrant for the removal of the person to the district lunatic asylum, to send that person back to the prison or place of confinement from whence he had been removed once he had been certified to have become of sound mind, and to have the prisoner in question brought before the Justice by whom he was originally remanded. I am also of opinion that the section applies not merely to the preliminary investigation of indictable offences like the case under consideration in this appeal, but also to the exercise of summary jurisdiction by Justices. If an accused person had been remanded, but allowed bail then, even if he was of unsound mind, he could not be dealt with under the section. Furthermore, in view of the fact that the section is confined to remands made for the purpose of further examination, I am of opinion that it does not operate after the conclusion of all the evidence in the case. Therefore, if a prisoner is further remanded by a Justice for the purpose of giving the Justice time to consider his decision, having heard all of the case, this section would not be operable during that period.
It is quite clear that the purpose of the section was to assist in the administration or the government of prisons. No doubt it created a problem for prison authorities to have persons of unsound mind in the prisons, whether they were on remand or serving sentences. The section must be read in conjunction with the other statutory provisions which permit the removal of convicted persons from prison to a mental home and with the provisions which permit the continued detention of such a person in a mental home even after the term of his imprisonment has expired, if he has not yet been certified sane. The object of the section was not, primarily at least, to alleviate the condition of the accused person so far as the ordeal of trial was concerned because, if so, it would have been made applicable to persons who are not remanded in custody but who are in the same mental condition. The effect of the making of an order under s. 13 of the Act of 1875 was to remove the person affected out of the immediate jurisdiction of the Justices concerned with the case and, in effect, to suspend their consideration and orders in the case until such time as he might be certified sane again and returned to the Court under the provisions of the section.
When a person appears before the District Court (like any other court of trial) charged with a criminal offence, one of the relevant factors to be considered, if it should arise, is the question of the inability of the accused person by reason of unsoundness of mind to appreciate the charges against him, to be able to follow the course of the trial or the investigation, and to be able to conduct or instruct his defence adequately. When a person appears for his trial upon indictment and the issue is raised, there is a special statutory procedure whereby the issue as to his fitness to plead is to be determined by a jury. No such provision exists in the case of the District Court or in the case of the Circuit Court when dealing with the hearing of criminal appeals from the District Court. There have been many cases of persons, who have been returned for trial, being found unfit to plead upon their appearance for trial on indictment. It may well have been that these persons were already in that condition while the preliminary investigation was being conducted, but that the point was not raised. It appears to me that if a District Justice, whether conducting a preliminary investigation or the summary trial of any criminal matter, comes to the conclusion upon proper evidence that the accused person is by reason of unsoundness of mind in a condition which may be described shortly as “unfit to plead,” he cannot proceed with the hearing of the matter while the accused is in that condition and that if he did so, in a case where the evidence was such that no other reasonable view was open save that the accused was unfit to plead, the proceedings would be quashed. It is furthermore quite clear that if the Justice is satisfied that the accused person is in that condition, then the accused is not in a condition to consent to the proceedings going on or to consent to the summary trial of an indictable offence under the provisions of the Criminal Justice Act, 1951.
An apparent exception to this is contained in the provisions of s. 207 of the Mental Treatment Act, 1945, but on examination it will be seen that it is not an exception but merely a method by which a District Justice certifies that a person, who is at that time detained in a district mental hospital, is suitable for transfer to the Central Mental Hospital at Dundrum. That section provides that, where a person detained in a mental hospital is charged with an indictable offence before a District Justice sitting in such district mental hospital and evidence is given which, in the opinion of the Justice, constitutes prima facie evidence that the person has committed the offence and that he would, if placed on trial, be unfit to plead, the Justice should certify by order that such person is suitable for transfer to the Central Mental Hospital at Dundrum. It is to be seen, therefore, that this does not amount to a return for trial or a conviction but is a special type of investigation confined to the place and circumstances set out in that section, the object of which is to have the person transferred to the Central Mental Hospital, Dundrum.
If an accused person is not “unfit to plead,” he must stand his trial or undergo the preliminary investigation in the District Court, and the only person who may decide that is the District Justice who has seisin of the case. It is, therefore, possible for a person who is suffering from a disease of the mind to be tried and convicted both in the District Court and upon trial on indictment, because the exemption from trial for insanity is limited to the cases where the disease is such that the person is “unfit to plead.”
In the case of summary trial, as distinct from preliminary investigation, the defence of insanity, apart from the question of fitness to plead, may be raised and may be established. The statutory form of verdict which is applicable to cases of trial on indictment does not apply in the District Court and the District Court is governed in this matter by the common law rule that, if the District Justice is satisfied that the accused committed the offence but that the defence of insanity is made out, the form of verdict is one of acquittal. If, however, a person, who is not found “unfit to plead” by the District Justice and in respect of whom the defence of insanity (if raised) does not succeed, is sentenced to imprisonment notwithstanding that he may be suffering from a disease of the mind, then he has passed out of the jurisdiction of the District Justice after sentence and the Minister for Justice under the statutory powers vested in him by virtue of s. 12 of the Central Criminal Lunatic Asylum (Ireland) Act, 1845, may have him transferred to a mental institution. A person returned for trial in custody by the District Court may, by order of the Minister for Justice under s. 3 of the Criminal Lunatics (Ireland) Act, 1838, be removed from prison to a mental home if he is certified to be insane and there detained until the sitting of the court of trial to which he had been sent forward.
The real point, however, for decision in the present case is whether such a step can be taken as was purported to have been taken in this case under s. 13 of the Act of 1875 while the case was still before the District Court. In my view it cannot. When a prisoner is remanded in custody by order of the District Court he is held under the order of the District Court and is at the disposal of the District Court and the order for remand directs his re-appearance on a named day. Furthermore, the order for remand in custody may not, according to law, be for a period greater than eight days, and if he is still in custody at the end of that period without a further remand, the order of the District Court is spent and the custody, unless otherwise justifiable in law, is illegal.
The exercise of the judicial power of the State is confined by the Constitution to the Courts and their judges established under the Constitution. In the hearing and determination of a case within its jurisdiction, the District Court is exercising that judicial power. The doing of any act or the taking of any step by any non-judicial authority in the State, which interferes with, restricts or prevents the District Court from deciding the particular case before it in accordance with the law applicable to it, is an infringement of the judicial power. The District Court undoubtedly had jurisdiction and authority to conduct a preliminary investigation or to otherwise determine the case as permitted by law for the purpose of disposing of the charges brought at the suit of the Attorney General against the appellant. Once the Court had jurisdiction, it had a constitutional right to exercise its judicial power within that jurisdiction in relation to the specific charges upon which the appellant appeared. Any law which permits or authorises the creation of a situation in which it becomes physically impossible to exercise a constitutional right is itself inconsistent with the Constitution see the judgment of this Court in The State (Quinn) v. Ryan (1).Under s. 13 of the Act of 1875 the powers there conferred on the Lord Lieutenant were such as would permit the removal of the prisoner from the order and disposition of the Court and prevent his attendance at the Court, and thus render it physically impossible for the Justice to continue the case in circumstances in which it would be quite lawful for him to deal with the case if the accused person were present.
The effect of Article 6 and Articles 34 to 37, inclusive, of the Constitution of Ireland is to vest in the Courts the exclusive right to determine justiciable controversies between a citizen or citizens and the State: see the judgment of the former Supreme Court in Buckley & Others (Sinn Féin) v.Attorney General and Another (1). In this context I am of opinion that the conduct of the preliminary investigation and the receiving or refusing informations upon this investigation is the exercise of the judicial power of the State by the District Court and in this matter I agree with the view expressed by Davitt P. in his judgment in The State (Shanahan) v. The Attorney General (2). On the appeal from the decision of Davitt P. in that case I left that question open for future decision in delivering my judgment, with which the other members of this Court agreed. Therefore, any procedure which removes the prisoner from the control of the District Court during the actual hearing, or which in effect supersedes the orders of that Court made during the course of the hearing, is such an infringement.
In the legal and constitutional structure prevailing before the setting up of this State such a procedure or interference could be warranted by Act of Parliament. Sect. 13 of the Act of 1875 amounts to a parliamentary authority for such an interference but, in my view, its provisions were inconsistent with the directions contained in the Constitution of Sacrstát Éireann (and in the Constitution of Ireland) which related to the exercise of the judicial power; and in my view those provisions, in so far as they permit the making of an order for the confinement of the accused person for a period in excess of that ordered by the justices in their warrant of remand or would prevent the accused person from being brought before the justices upon the date directed by them in their warrant of remand for further examination, were inconsistent with the directions in the Constitution and were not carried over as part of the law. In my view that portion of s. 13, beginning “it shall be in like manner certified”in line 9 down to the words “and be” in the 14th line of the section, inclusive, is inconsistent with the Constitution and is not carried over. In consequence the section should now read, in the light of the adaptation substituting the Minister for Justice for the Lord Lieutenant, that it shall be lawful for the Minister for Justice to make the order there referred to and that, in consequence thereof, the person when so removed to the district mental hospital shall remain under confinement in such mental hospital until brought before the justices before whom he was ordered in the warrant of remand to be brought for further examination. In a case such as the present one, the result would be that the accused person might, during and for the duration of the period of his remand in custody by the District Court, be transferred to the district mental hospital under an order of the Minister made in pursuance of s. 13 of the Act of 1875, but the accused must appear before the District Justice again on the date in the order for remand either for trial, preliminary investigation, or for further remand as the District Justice may direct.
The District Justice could remand for a further period in custody in the absence of the accused if he is satisfied that through illness the accused is unable to attend. That is permitted in the District Court Rules, 1948, and, if the District Justice is satisfied on evidence that the accused is by reason of his unsoundness of mind “unfit to plead”, he would probably, for the same reason, be satisfied for the purpose of the further remands that the accused was too ill to attend so long as the condition continues. The provisions of s. 24, sub-s. 4 of the Criminal Procedure Act, 1967, permit the District Justice, after the first remand in custody, to grant longer remands for such periods as the Court considers reasonable where it is satisfied that the person is, by reason of illness, unable to appear or be brought before the Court at the expiration of remand. At the making of such remand in a case such as this, where the illness is mental illness, the District Justice would of course have to be judicially satisfied of the continued “unfitness to plead” of the accused. The alternative would be to withdraw the charges or offer no further evidence so that, in effect, the proceedings would be discontinued. In such a case, of course, the person could no longer be held under s. 13 of the Act of 1875 but might receive the appropriate treatment under the other provisions relating to mental health.
At this juncture I think it is relevant to refer to s. 165 of the Mental Treatment Act, 1945. That section refers to persons of unsound mind who, for the public safety or their own safety, should be placed under care and control. By its very terms the section quite clearly refers to persons who are not already under care and control and permits the taking of such persons into custody for the purpose of examination. That section was invoked in the case of the appellant on the 24th May, 1965. It was, in my view, in properly invoked because the appellant at that time was actually in the custody of the Governor of St. Patrick’s Institution who had dispatched him from that institution to the Court, and it was while he was in the custody of the Governor of St. Patrick’s that he was taken into custody by the Civic Guards and dealt with under sect. 165. The custody of the Governor of St. Patrick’s was one which had been ordered by the Court which directed his return to the Court on the very day on which he was taken into custody by the Civic Guards. Sect. 165 of the Act of 1945 does not contemplate such an interference with the process of the Court nor does it contemplate that it should be used in respect of persons who are in fact under care and control. Furthermore, the section does not operate to prevent the exercise of its jurisdiction by the District Court, or any other court exercising criminal jurisdiction, to compel the attendance of the person so certified before the court and, in my view, that attendance may be secured by warrant of the court if necessary.
As I have indicated earlier, the function of the court in relation to the question of unsoundness of mind is to be satisfied as to whether or not the person is fit to be tried or is in a condition to be subjected to a preliminary investigation. If he is, and that is a matter for the court only to decide, no other procedure can affect the matter. The case of Regina v. Peacock (1) is relevant to this point. There, a prisoner had been charged with manslaughter, was brought before the magistrates and committed to take his trial for manslaughter at the next assizes, but at the same time medical evidence was given to the effect that he was labouring under insane delusions and he was removed to a mental asylum by warrant from the Secretary of State under the Insane Prisoners (Amendment) Act, 1864. Sect. 2 of that Act provided that where any person, while in prison under a sentence or under a charge of an offence or for not finding bail for good behaviour or in consequence of a summary conviction, was certified by the justice and two physicians as being insane, then the Secretary of State by warrant might remove him to the mental asylum where he would be detained until certified to the Secretary of State by two physicians that he had become sane; in which case he would be discharged if his imprisonment has expired, or returned to continue his sentence if it had not or, in other cases, returned to the former place of confinement and there dealt with in accordance with law. The provisions in fact are very similar to s. 13 of the Act of 1875. When the time arrived for the trial of Peacock, an application was made on behalf of the prosecution to the trial judge at the assizes (Brett J.) for a writ of habeas corpus to have the prisoner brought from the mental asylum to the court. The writ of habeas corpus was granted and the prisoner was put upon his trial. A jury was then sworn to try the issue of his fitness to plead and the medical evidence indicated that, although the prisoner was labouring under insane delusions, he was not in the position that he did not understand the nature of the plea of guilty or not guilty and that he apparently had sufficient memory to recollect that he killed the deceased. The jury found that the prisoner was fit to plead and he was put on trial for manslaughter. During the course of the trial, evidence was given and the question was raised as to the condition of the prisoner’s mind at the time the depositions were taken at the preliminary examination. The judge, having consulted a brother judge, permitted the examination to be conducted on that pointthe contention of counsel being that the accused by reason of his insanity had not had the “full opportunity” within the meaning of the Indictable Offences Act, 1848, which dealt with the preliminary investigation of indictable offences and which provided, at s. 17, that the accused or his counsel must have the full opportunity to cross-examine the witnesses. Eventually the jury found the prisoner was, by reason of insanity, not in a fit state to take his trial.
I feel I should also draw attention to the position which must arise when a person stands charged in the District Court with the commission of an offence in respect of which the District Justice, if he is not disposing of the case there and then, must by law remand the accused either in custody or on bail. Our present law of bail requires that the accused person must enter into a recognisance. If a person was in such a condition as to be unfit to plead I think it unlikely that he would have been in a condition to enter into a recognisance; and if the District Justice took that view of the evidence, if any, offered in relation to the accused’s mental condition, he would have, in my opinion, no alternative but to remand the accused in custody: see Rex v.Green-Emmott (1). In that case an accused person had pleaded guilty at Manchester Assizes, had been bound over and had entered into a recognisance. Some time afterwards he was brought up for sentence for breach of the recognisance and sentenced to ten months imprisonment. At the time he had entered into the recognisance he had been certified as insane. The Court of Criminal Appeal in England held that the certificate of insanity raised a presumption of insanity which held good unless it was displaced by evidence. They were of opinion that a person who was insane could not enter into a binding recognisance and, in the result, the sentence was quashed. It appears to me, therefore, that a District Justice before taking the recognisance of the accused would have to be satisfied, if the question of insanity had been raised and put in issue, that the accused did understand and appreciate the nature of the undertaking. If such a person were remanded in custody, then the provisions of s. 13 of the Act of 1875 may be operated in the manner in which I have already indicated as being consistent with the Constitution. That is to say in a way consistent with the exercise of the judicial power conferred by the Constitution.
The last remand made by the District Court in respect of the appellant expired on the 13th September, 1965. For the reasons I have already given I am of opinion that his detention since then was not warranted by law and the respondents herein have not shown that his present detention is in accordance with law. In my view, therefore, an order must be made directing the release of the appellant from his present detention. The order of the High Court allowing the cause shown against the making absolute of the conditional order of habeas corpus should be set aside. The application for certiorari was not pursued in the High Court and no order was made in respect of it and no appeal on that point was taken to this Court. As the appellant still faces charges before the District Court which, according to the entries in the charge sheets have been adjourned generally with liberty to re-enter, it is a matter for the District Court and the Attorney General to decide what further course should be taken in respect of these charges. While he is at liberty all relevant statutory provisions in relation to the care of persons of unsound mind are applicable subject, as already mentioned, to whatever order the District Court may make in respect of his custody upon the charges which are before the District Court.
I am also of opinion that as s. 8 of the Criminal Justice Act, 1960, in so far as it relates to s. 13 of the Act of 1875, relates only to so much of it as was carried over by the Constitution. On that aspect of it I am of opinion that no question of its validity having regard to the provisions of the Constitution now arises for consideration in this case.

BUDD J. :
I agree with the judgments delivered by the Chief Justice and by Mr. Justice Walsh.

 

FITZGERALD J. :
I also agree.

McN v HSE

[2009] IEHC 236

JUDGMENT of Mr. Justice John Edwards delivered on 11 February 2009
Introduction
On 28th October, 2008, this court was asked by the applicant to open an inquiry pursuant to Article 40.4.2˚ of the Constitution of Ireland into the legality of the detention of the applicant’s daughter, a 33 year old South African national, at the Mercy University Hospital in the City of Cork. The applicant’s daughter is Ms. N.I. and will hereinafter be referred to as ôthe patientö. The patient is alleged to be detained unlawfully at the Mercy University Hospital, an institution operated by the second named respondent, in purported pursuance of an order made by a servant or agent of the first named respondent pursuant to s. 38 of the Health Act, 1947 as amended by s. 35 of the Health Act, 1953 which provides for the detention and isolation of a person suffering from an infectious disease who is a probable source of infection. The applicant claims that the patient’s detention is unlawful and she seeks an order for the patient’s release. The order in question was made on 11th December, 2007 and was made by the Medical Officer of Health for the Health Service Executive South, on the basis that the patient is a probable source of infection with an infectious disease, to wit tuberculosis (TB), and that her isolation is necessary as a safeguard against the spread of infection and that she cannot be effectively isolated in her home. The order specified that the patient be detained and isolated in a specialised negatively pressurized room within the Mercy University Hospital until certified by the said Medical Officer of Health that she is no longer a probable source of infection. The Court, having received evidence on affidavit concerning the patient’s alleged detention, was satisfied to open an inquiry into the lawfulness of that detention pursuant to Article 40.4.2˚ of the Constitution.

The applicant claims, first, that the patient’s detention is unlawful, and secondly, that if her detention is in fact lawful then the law authorising it, namely section 38 of the Health Act, 1947, is unconstitutional.

By Order of this Court dated the 28th October, 2008, the first and second respondents were directed to certify in writing the grounds of the patient’s detention. The Court further ordered that Ireland and the Attorney General be joined to the proceedings as third and fourth named respondents respectively, having regard to the constitutional issue that has been raised. Since then, the first and second named respondents have duly certified in writing the grounds of the patient’s detention and have sought, by the adduction of relevant evidence, to justify it as being in accordance with law. This applicant has contested this and has adduced evidence of her own in support of her contention that the patient is not lawfully detained. The Attorney General has argued the constitutional validity of the impugned section, and the applicant has argued its invalidity. The hearing lasted five days. The Court, mindful of the need for expedition in a matter involving the right to personal liberty, ruled on the 26th of November 2008 that the patient’s detention was lawful, and in respect of the impugned section, which enjoys a presumption of constitutionality, that no case tending to rebut that presumption had been made out such as might justify it in stating a case for the opinion of the Supreme Court. I gave brief reasons for my decision ex-tempore and indicated that I would give more detailed reasons in a reserved judgment to be delivered later. I will now do so.

Moreover, it should be stated that I have, of my own motion, decided that it is appropriate to bring the very particular and unusual circumstances of the patient’s case to the attention of the President of the High Court so that he might consider it the context of the wardship jurisdiction that is reserved to him. Accordingly, my judgment incorporates a much more detailed review of the evidence heard in the course of the inquiry than would otherwise be necessary.
The relevant statutory provisions
It may be helpful to an understanding of the issues in the case if I outline at this stage the relevant statutory provisions. They are as follows:-

(a) The principal statute with which we are concerned is the Health Act, 1947. Section 38 of the Health Act, 1947 in its original and unamended form stated:-

(1) Where a chief medical officer is of opinion, either consequent on his own inspection of a person in the area for which such medical officer acts or consequent upon information furnished to him by a registered medical practitioner who has inspected such person, that such person is a probable source of infection with an infectious disease and that his isolation is necessary as a safeguard against the spread the infection, and that such person cannot be effectively isolated in his home, such medical officer may order in writing the detention and isolation of such person in a specified hospital or other place until such medical officer gives a certificate (for which no charge shall be made) that such person is no longer a probable source of infection.
(2) Where an order is made under this section in relation to a person (in this subsection referred to as the patient), the following provisions shall have effect:-

(a) the medical officer who made the order in this subsection referred to as the committing officer) shall forthwith send a copy of the order to the Minister and to the Health Authority for which he acts,
(b) the committing officer, and also any other person, to whom the duty of acting under this section has been assigned by or with the consent of the Minister and who has been authorised in writing by the committing officer to act in the particular case, may detain the patient,

(c) the person detaining the patient shall, on or before doing so –

(i) produce for inspection by the appropriate person his written authorisation from the committing officer, if he is not himself the committing officer, and

(ii) give to the appropriate person a copy of the order and a statement in writing of the right of appeal under paragraph (h) of this subsection,

(d) if the patient, when detained, is outside the area for which the committing officer acts, the committing officer, may, with the consent of the chief medical officer of the area in which the person is detained, amend the order to allow for the patient’s isolation in a hospital or other place convenient to the place where he is detained, and the order as so amended shall have effect accordingly,

(e) where the committing officer amends the order, he shall forthwith send a copy of the order as amended to the Minister and to the health authority for which he acts and to the health authority of the area in which the patient is detained and to the appropriate person,

(f) after the patient is detained, he shall be taken to the hospital or other place specified in the order and shall, subject to the provisions of this subsection, be there detained and isolated until the committing officer certifies that he is no longer a probable source of infection,

(g) the person in charge of such hospital or other place shall afford to the committing officer all reasonable facilities for visiting such hospital or other place and examining the patient therein,

(h) the patient (of the parent of the patient, where the patient is a child) may at any time appeal to the Minister in writing to direct the release of the patient.

(i) the person in charge of such hospital or other place shall afford all reasonable facilities for the purposes of any appeal under paragraph (h) of this subsection, including where appropriate facilities for the inspection of any reports and records relating to the patient and available in such hospital or other place and the provision of copies of any such reports or records,

(j) on receipt of an appeal under paragraph (h) of this subsection, the Minister shall give notice in writing of the date on which such appeal was received by him to the person making the appeal and to the person in charge of such hospital or other place,

(k) if no determination of an appeal under paragraph (h) is made by the Minister and communicated to the person in charge of such hospital or other place within twenty one clear days from the receipt by the Minister of such appeal, such person shall release the patient and notify the committing officer of such release and if necessary arrange for conveyance of the patient to his usual place of residence,

(l) if at any time the Minister directs the release of the patient, he shall be released by the person in charge of such hospital or other place in accordance with the direction and such person shall, if necessary, arrange for his conveyance to his usual place of residence

(m) where an appeal is made under paragraph (h) of this subsection the Minister shall cause one of medical officers to examine the patient and report the result of such examination,

(i) as soon as practicable after the appeal is received by the Minister, and

(ii) at intervals thereafter not exceeding six weeks during the detention,

(n) the person in charge of such hospital or other place shall provide all reasonable facilities for an examination under paragraph (m) of this subsection,

(o) force may, if necessary, be used for the purpose of carrying out any provision of this subsection.

(3) In this section the expression “the appropriate person” means in relation to a patient –
(a) where the patient appears to be under sixteen years of age and his parent can be ascertained and reached within a time which is reasonable having regard to all the circumstances of the case – his parent,

(b) where the patient appears to be under sixteen years of age and his parent cannot be ascertained and reached within a time which is reasonable having regard to all the circumstances of the case – the person for the time being in charge of the patient,

(c) where the patient, being an adult person, is for any reason unable to act for himself – the person for the time being in charge of the patient,

(d) in any other case – the patient himself.

(4) A person to whom an order under this section relates who –

(a) resists being detained under this section or resists being brought under this section to the hospital or other place specified in the order, or
(b) wilfully misbehaves while detained in such hospital or other place,

(c) escapes or attempts to escape from detention under this section, or

(d) does not submit himself in a peaceful and orderly manner to the exercise of any power conferred by this section, shall be guilty of an offence under this section.

(5) A person who –
(a) prevents or attempts to prevent the detention under section of any person or the bringing under this section of any person to a hospital or other place for detention and isolation, or
(b) assists in an escape or an attempted escape of any person from detention and isolation under this section, or

(c) obstructs or interferes with the exercise of any power conferred by this section, shall be guilty of an offence under this section.

(6) A person who is guilty of an offence under this section, shall, on summary conviction thereof, be liable to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment.
(7) The cost of the maintenance and treatment of a person to whom an order under this section relates in the hospital or other place mentioned in the order (including the cost of anything done under paragraph (f), (k) or (l) of subsection. (2) of this section) shall be paid by the health authority for which the medical officer who made the order acts.”

(b) Section 38 of the Health Act, 1947 was amended by s. 35 of the Health Act, 1953. The amendment is in the following terms:-
“An order made after the commencement of this section under subsection (1) of section 38 of the principal act shall have no effect unless, in addition to being signed by the chief medical officer, it is also signed by another registered medical practitioner.”

(c) At the time of its enactment Ireland’s public health services, such as they were, were administered in a very different way to the way in which they are administered today. At that time primary responsibility for the delivery of public health services rested with local government “health authorities” that were synonymous with the various county councils and borough corporations then existing throughout the country. These health authorities operated under the direction of the Minister for Health. In due course, and by virtue of the enactment of the Health Act, 1970, the local government health authorities were replaced by regional health boards and, even more recently, following the enactment of the Health Act, 2004, these health boards were in turn replaced by the Health Service Executive.

(d) At each relevant stage, the legislation giving effect to these changes contained provisions designed to effect, in so far as possible, a seamless transfer of statutory functions and powers from one form of health service administration to the next. In this regard it should be noted that Schedule 5 to the Health Act, 2004 contains Savings and Transitional Provisions which include a provision (No 4(2)) specifying that

“Any function under the Health Acts, 1947 to 1953 of a Chief Medical Officer may be performed on or after the establishment day by an appropriately qualified medical practitioner who is an employee of the executive and is designated in writing by it to perform such function.”

(e) Section 29 of the Health Act 1947 provides:
“(1) The Minister may by regulation specify the diseases which are infectious diseases

(2) Regulations under subsection (1) of this section may exclude an infectious disease from the application of any particular section of this Part of this Act.

(3) The Minister may define a disease in regulations under this section in any manner which he considers suitable including, in particular, by reference to any stage of the disease or by reference to any class of sufferers from the disease.”

(f) In s. 2 of the Health Act, 1947 “the expression ‘infectious disease’ means primarily any disease included in regulations under subsection (1) of section 29 whether absolutely or by definition of a particular stage of such disease”.
(g) The Infectious Diseases Regulations, 1981, SI 1981/390, as amended, are regulations made under s. 29 of the Health Act 1947 and all diseases currently specified as infectious diseases are listed in the Schedule thereto. Regulation 8 of those regulations, as amended by regulation 4(4) of The Infectious Diseases (Amendment) (No 3) Regulations, 2003, SI 2003/707 provides:

“All the infectious diseases listed in the Schedule to these Regulations, except acute anterior poliomyelitis, cholera, diphtheria, paratyphoid, plague, severe acute respiratory syndrome (SARS), smallpox, tuberculosis, typhoid, typhus and viral haemorrhagic fevers (Lassa, Marburg, Ebola, Crimean-Congo) shall be excluded from the application of Section 38 of the Health Act 1947 as amended by Section 35 of the Health Act 1953 .”

The Ex Parte Application
The initial application to the court was an ex-parte application made at 10.30 a.m. on 28th October, 2008 grounded upon an affidavit of the applicant sworn on the 24th October, 2008 and documents exhibited therein.

The Applicant’s Grounding Affidavit
In her affidavit the applicant deposed that she is a South African citizen and was only in the country for a limited period. It was her intention to return to South Africa on 30th October, 2008. She described how she gave birth to her daughter, the patient, in South Africa on 25th August, 1975. The applicant was aged just fifteen at that time. Following her birth the patient lived with the applicant’s father and step mother while the applicant herself lived with her maternal grandparents. The patient reached the age of eighteen and went to live in Johannesburg with the mother of a friend known to the applicant as Lena. The applicant states that they became estranged but that she subsequently learned from Lena that the patient had married a man called E.I.. The patient became pregnant and travelled to Ireland during the course of her pregnancy in or about the month of August, 2001. The applicant’s understanding is that it was their intention that E.I., a Nigerian citizen, would follow the patient to Ireland. He did not do so and he died in May, 2008. The applicant deposed that her daughter has remained resident in Ireland since her arrival in 2001. She gave birth to a daughter, I., in October, 2001. The patient subsequently became involved with another man and gave birth to a second daughter, S.L., in 2005. The man in question is Irish and resides in the Cork area. The first daughter I. is currently in the care of the Health Service Executive and is in a foster placement pursuant to an interim care order made under the Child Care Act, 1991 which was due to expire on 14th January, 2009. The second daughter S.L. resides with her father.
The applicant deposes that she understands, and has been advised by the patient’s friend Lena, that the patient suffered from tuberculosis whilst she lived in Johannesburg. She spent six months in hospital at that time and the treatment was successful. The applicant goes on to state her understanding that the patient became ill while she was living in Ireland. The patient was admitted to the Mercy University Hospital in November, 2006. The applicant’s understanding is that she had suffered an ectopic pregnancy for which she had been admitted initially to Erinville Maternity Hospital and that she was subsequently transferred to the Mercy University Hospital. She spent six weeks as an in-patient in the Mercy University Hospital. She was discharged on medication into the care of her general practitioner. The applicant believes that the patient had to be subsequently re-admitted to the Mercy University Hospital where she remained for some further time. The precise circumstances leading to her re-admission on this occasion are not clear. However, the applicant understands that the Health Service Executive became involved in the provision of care for the patient and her children at that time. Once again, details concerning the care provided are sparse. The applicant states that when the patient was discharged on this occasion she was provided with home help assistance. It is thought likely that the HSE were also providing childcare and family support services pursuant to s. (3)(3) of the Child Care Act, 1991. The patient has told the applicant that she remained and felt very unwell at the time. She went again to her general practitioner who suggested that she go to the accident and emergency department at the Mercy University Hospital. She did so and was admitted to the hospital under the care of Dr. Terry O’Connor, Consultant Respiratory Physician. The applicant does not specify the basis for this admission but it is clear from other evidence that the court has received that she was suspected as having tuberculosis. It has also subsequently emerged that, in addition to having tuberculosis, the patient is also infected with the human immuno-virus (HIV) and in fact has full blown AIDS. According to the applicant “at that time, it appeared that the authorities in Mercy University Hospital were unsure as whether or not (the patient’s) condition was infectious or not (sic). The situation apparently changed on a day to day basis where persons would be required to wear masks on certain occasions and not on others”. The applicant states that the patient became depressed at this time and her relationship with the father of her second daughter broke up. The applicant expresses the belief that the patient was not taking her medication regularly. The applicant learned that the patient telephoned a friend of hers, one R.N., asking to be collected from hospital. According to the applicant the patient was suffering hallucinations at the time. R.N. attended at the Mercy University Hospital and, after the patient had taken her discharge, brought the patient to her house.

The applicant states that she has been advised that a Dr. Dillon, Consultant Respiratory Physician at St. Finbarr’s Hospital in Cork, was informed that the patient had discharged herself and this Dr. Dillon put in train the process of detaining her daughter. The applicant further deposed that she had not had an opportunity to see the order that purported to detain her daughter, but she understood that it was an order pursuant to s. 38 of the Health Act, 1947 as amended. She stated that she believed Dr. Dillon travelled with members of An Garda Síochána to the residence of R.N. and that the patient then went with them voluntarily to the Mercy University Hospital. The applicant’s belief was that this occurred in November, 2007. The applicant states that the patient has remained in isolation at the Mercy University Hospital since. There is a guard sitting outside her door and all visitors and medical attendants entering her room are required to wear gloves and a mask.

The applicant has further deposed that for the majority of the patient’s stay at the Mercy University Hospital she has not accepted any treatment or medications for tuberculosis, or otherwise. She believes that this is the case notwithstanding that the patient has been advised by the staff of the Mercy University Hospital that she would die in the absence of treatment for tuberculosis. The applicant has deposed that she was very concerned and upset about this. She has also been told that the patient has refused any form of x-ray, MRI, or blood test and that, as a consequence, it is impossible for anybody to be sure of her current health condition. She has deposed that her daughter looks well physically but that she is very concerned at her mental state.

The applicant has stated that she travelled to Ireland in May 2008. At that time the patient was sleeping on a mattress on the floor of the bathroom adjacent to her hospital room. For a number of days the patient would not return to her hospital bed. It required a lot of persuasion to get her to do so and that the patient appeared on occasions to suffer from hallucinations. She spoke to phantom people on the telephone when it was clear that there nobody on the other side. She also spoke to people in the room who were not there. The patient asserted on one occasion during the applicant’s visit in May that her former partner (the father of her second daughter) had been murdered by one of her friends and that they wanted to murder her too and to throw her in the river. According to the applicant the patient regularly talks to herself. The applicant has stated that she returned to South Africa in June, 2008 and, just recently, had returned to Ireland again for a limited period. She has expressed concern that her daughter is still detained in hospital without the benefit of tests or appropriate medical treatment. She is fearful for her psychiatric condition. She deposed that the patient remains intermittently in a low mood and can be aggressive. During the course of a recent visit by the applicant the patient appeared to talk to people who were not there and she continues to talk to herself regularly. The applicant described attending with her solicitor to see her daughter on the 16th of October, 2008. She stated that on that occasion the patient alleged that Dr. O’Connor was a liar and that he had raped the applicant in her presence and had held a gun to her head. According to the applicant she repeated this allegation several times. The applicant has articulated a concern that her daughter’s mental condition requires to be appropriately evaluated and treated.

She explained that Dr. David Dunne, Consultant Psychiatrist, had recently seen the patient at her (the applicant’s) request and a copy of Dr. Dunne’s report was exhibited. Dr. Dunne subsequently gave detailed oral evidence to the court and I will review his evidence in due course. It is sufficient to note at this point in the chronology that Dr. Dunne has expressed the opinion in his report that there is a very strong possibility that the patient may not be capable of taking rational decisions and he has also expressed the view that she was not capable of giving instructions to a solicitor in the state in which he had found her. He has also opined that when he saw her the patient was exhibiting some sort of psychotic process or disorder, almost certainly a long term confusional disorder secondary to serious physical illness in the form of TB and HIV infection.

The applicant also alludes in her affidavit to information contained within the report of Dr. Dunne to the effect that the patient had been seen by a Dr. John Cooney, a Consultant Psychiatrist and the Clinical Director of the Mercy Hospital, who had stated that he was not sure about the patient’s mental state but thought on the whole that it was best to assume that she was fit to take decisions.

The applicant went on to describe how she had instructed a solicitor to write to the solicitors for the first and second respondents, respectively, seeking information concerning her daughter’s situation. It is sufficient to say that she had some difficulty in securing the information that she wanted because the first and second named respondents were concerned about the issue of patient confidentiality. She exhibited before the court a course of correspondence between her solicitors, and the solicitors for the first and second respondents respectively, and it is not necessary for the purposes of this chronology to review it in any detail. However, she had still not received sight of the original order detaining her daughter as of the date of the swearing of her affidavit and accordingly was unable to exhibit a copy of it before the court.

The remainder of applicant’s affidavit is devoted criticisms of the legality of the patient’s detention. It asserts that she is being deprived of liberty otherwise than in accordance with law. It further asserts violation of the patient’s constitutional rights, including her rights to personal liberty and the protection of her family life. It further asserts violation of Articles 5 and 8 of the European Convention on Human Rights and Fundamental Freedoms. Specific criticisms are made of s. 38 of the Health Act, 1947, as amended, and in particular complaint is made that the appeal mechanism therein is inadequate, and there is no provision for an automatic independent review of the patient’s detention. In substance the complaint made is that, in enacting s. 38 of the Health Act, 1947 without incorporating necessary safeguards, the State has failed to defend and vindicate the patient’s rights. If the applicant is right about this, the section is unconstitutional. The applicant further asserts that even if existing safeguards are deemed sufficient, the section has not been operated in accordance with constitutional norms and with due regard to the rights of the patient. She complains in particular that her daughter’s mental state means that she is not in a position to bring appeals or to seek a review of her position. The affidavit concludes with a prayer that the court should enquire into the legality of the patient’s detention.

The applicant’s affidavit having been opened to the court, I formed the view that it was appropriate that the court should inquire into the legality of the patient’s detention and I made an order pursuant to Article 40.4.2˚ of the Constitution of Ireland requiring the first and second named respondents to certify in writing the grounds of the patient’s detention and to appear before me at 4 p.m. on that same day, namely the 28th of October, 2008, at which time they would be afforded an opportunity of justifying the patient’s detention. Further, and as previously stated, I directed that Ireland and the Attorney General be added as respondents. I further decided in the exercise of my discretion, having regard to what was known at that time about the patient’s medical condition and the possibility of her being a source of infection, not to order the production of the patient before the court. I indicated that if it were necessary to hear from the patient herself, or if the patient herself wished to be heard in the course of the inquiry, the court would endeavour to facilitate that, either by convening a hearing within the Mercy University Hospital, or by means of the establishment of a video link between the Mercy University Hospital and Cork courthouse, where the court was then sitting.
The return and the certification in writing of the grounds of the detention
When the court sat 4 p.m. on 28th October, 2008 the first and second named respondents were each independently represented by solicitors and counsel. The third and fourth named respondents were also represented by solicitors and counsel. A certificate was produced on behalf of the second named respondent that is also relied upon by the first named respondent. The said certificate was in the following terms:

“ Certificate

Pursuant to the Order of the High Court made herein on 28th day of October, 2008 I, Jim Corbett, Deputy Chief Executive of the Mercy University Hospital in the City of Cork certify in writing in the schedule hereto the grounds for the detention of N.I..

Signed: Jim Corbett.
Dated: the 28th day of October, 2008

Schedule

I, Jim Corbett, Deputy Chief Executive of the Mercy University (sic) in the (sic) Cork certify as follows:

N.I. is detained in the Mercy University Hospital in the City of Cork pursuant to a detention order made under s. 38 of the Health Act, 1947 as amended, dated the 11th December, 2007.

I beg to refer to said order of 11th December 2007 and the report of Dr. Terry O’Connor referred to therein upon which pinned together and marked with the letter “A”. I have signed my name prior to the swearing hereof.

Signed: Jim Corbett.
Dated: the 28th day of October, 2008.

The order referred to in the schedule to Mr. Corbett’s certificate and exhibited marked with the letter “A” is in the following terms:-

“Health Act, 1947 – s. 38
ORDER
WHEREAS-

(1) I am Medical Officer of Health for the Health Service Executive South.
(2) I have been furnished with information from Dr. Terry O’Connor, a registered medical practitioner and Consultant Respiratory Physician, Mercy University Hospital in Cork, by way of the attached report dated 10th December, 2007 who has inspected and treated Ms. N.I.

(3) On the basis of that report I am satisfied that:

(i) She is a probable source of infection with an infectious disease to wit tuberculosis (T.B.) and
(ii) That her isolation is necessary as a safeguard against the spread of infection

(iii) That she cannot be effectively isolated in her home.

Now therefore I do make this ORDER that Ms. N.I. be detained and isolated in a specialised negative pressurised room within Mercy University Hospital until I give a certificate that she is no longer a probable source of infection.

Dr. Elizabeth Keane,

Medical Officer of Health,

Health Service Executive South

Dated 11th December, 2007.

I, Dr. Margaret B. O’Sullivan, a registered medical practitioner have considered the information as set out above and I have formed the opinion that Ms. N.I. is, on the basis of the information, a probable source of infection with an infectious disease, namely tuberculosis and that her isolation is necessary to safeguard against the spread of infection and that she cannot be effectively managed at home.

Dr. Margaret B. O’Sullivan,

Second Registered Medical Practitioner

as required by s. 35, Health Act, 1953.

(Signed: 11th December, 2007).”

There was attached to that document a medical report dated 10th December, 2007. This report took a form of a letter written on the letterhead of the Department of Respiratory Medication, Mercy University Hospital, addressed to Dr. Margaret O’Sullivan, Specialist in Public Health Medicine, Sarsfield House, Sarsfield Road, Cork. It is stamped as having being received in the HSE Department of Public Health on the 11th of December, 2007. The substantive part of the document is in the following terms:-

“Re: N.I. (D.O.B. 25/08/75)

Grt. William O’Brien Street, Apt. 2 Blackpool, Cork.

Diagnosis (1) Multi-drug resistant pulmonary tuberculosis
(2) HIV infection
(3) Cytomegalovirus and Retinitis

(4) Depression

Medications: (1) Omeprazole, 40 mgs once daily
(2) Moxifloxacin 400 mgs once daily
(3) Linezolid 600 mgs b.d.

(4) Trekator 500 mgs a.m./250 mgs p.m.

(5) Clarithormycin 500 mgs b.d.

(6) L-thyroxine 100 mcgs one daily.

(7) Vallergan 10 mgs b.d.

(8) Ganciclovir intravenously

Dear Dr. O’Sullivan,
This 32 year old South African Lady was originally admitted under my care on 19th October, 2006 with smear positive cavitatory pulmonary tuberculosis. On the basis of a history of HIV infection and previously treated TB from South Africa, we commenced her on six drugs because of concerns about the possibility of drug resistant tuberculosis.

 

She was discharged on the 26th October, 2006 but re-admitted on 30th November, 2006 with an etopic pregnancy and proceeded to laparotomy and left salpingectomy. She remained in hospital after this procedure and it emerged from her drug sensitivities which became available on 3rd January, 2007 that she had multi-drug resistant pulmonary tuberculosis with resistance to Isonizad, Rifampicin, Streptomycin, Ethambutol and Pyrazinmide.

Therefore her combination of anti-tuberculosis medication was adjusted to a more appropriate regime and she was ultimately transferred to St. Steven’s Ward in St. Finbarr’s Hospital on 6th February, 2007. She remained an inpatient in this setting until the 5th April 2007 when community based directly observed therapy was arranged for her.

Over the months that followed there were major difficulties with directly observed therapy for N.. There were many occasions where she was not present in her house for the medication to be observed and she had both left the city and the country without informing the community care nurses involved in her care. On this basis we arranged a multi-disciplinary meeting with N. in late August 2007 in the Department of Public Health, Sarsfield House, Sarsfield Road, Wilton. At this meeting I clearly indicated to her the importance of complying with her directly observed therapy and clarified that in the absence of compliance, we would need to complete the remainder of her therapy as an inpatient for a total duration of therapy of two years.

She was readmitted on this basis to the Mercy University Hospital on 20th September, 2007. N. felt that she was unable to cope at home and had expressed thoughts of extreme depression, including some suicidal ideation in the first instance. She was reviewed by the psychiatry team who felt that her main problem was one of distress with her physical and psychosocial stressors. Her behaviour became more inappropriate over the subsequent weeks and she became more depressed and upset. She has been reviewed by liaison psychiatry on a continuing basis but it is my opinion that her depression is reactive to her overall situation.
On 23rd November, 2007, she complained of some right-sided visual loss and was reviewed by the Ophthalmology Department at Cork University Hospital, who made a diagnosis of Cytomegalovirus Retinitis and suggested commencing her on Ganciclovir. However, by 27th November, 2007, she had refused all medication including her anti-tuberculosis and anti-viral therapies.

Therefore, the overall situation is as follows:

N. has HIV Aids with Cytomegalovirus Retinitis and multi-drug resistant tuberculosis and is at significant danger of becoming infectious in the absence of continued anti-tuberculosis therapy. I have explained this to her in detail. Furthermore, while she continues to refuse her anti-viral therapy, she is in danger of progressive loss of vision. At this point, she has refused her anti-tuberculosis therapy for the last ten days and it is my opinion, based on the extreme difficulties that we have had in convincing her to comply with her medication to date, that she will require in-patient supervised therapy for at least a further twelve months. This, needless to say, is assuming that she agrees to take her anti-tuberculosis therapy again. As she has refused her medication for the past ten days, we need to assume that she is potentially infectious again and she continues to be managed in a single room with negative pressure where all visiting staff are wearing respiratory protection. I see no circumstances in which her overall situation can be managed on an outpatient basis at this point, and I am gravely concerned about her short to medium term prognosis while she continues to refuse her medication.

It is my opinion that we cannot effectively isolate this patient in the home setting, having previously tried this unsuccessfully. Furthermore, it is my opinion that there is a significant risk of transmission of infection to others in this case. Finally, the mortality associated with this infection would be up to 80% according to internationally published data.

Yours sincerely,

 

Dr. Terry O’Connor, M.D. MRCPI FCCP
Consultant Respiratory Physician.”

 

The Oral Evidence

The evidence of Dr. Terry O’Connor
Dr. Terry O’Connor gave evidence on the evening of the 28th October, 2008. He stated that he is a Consultant Respiratory Physician with a special interest in tuberculosis. He is based predominantly in the Mercy University Hospital. He also spends some time in the South Infirmary and in St. Stephen’s Hospital. He confirmed that Ms. N.I. is under his care. He stated that the lady in question is South African. She had been living in Johannesburg for some time prior to moving to Ireland. She was first admitted into the Mercy Hospital in the autumn of 2006 with open pulmonary infectious tuberculosis. He explained that tuberculosis is an air borne infection typically of the lung and of the larynx. A person who has tuberculosis transmits it by coughing. He said that the patient’s circumstances raised a number of red flags in his mind for the presence of multi drug-resistant TB, which would be a much more serious and more fatal form of TB. First, he was particularly concerned that she had a history of HIV infection as well as tuberculosis. Secondly, she had a previously treated tuberculosis or at least partially treated tuberculosis. Thirdly, multi drug-resistant TB is endemic in sub-Saharan Africa, particularly South Africa. Dr. O’Connor stated that fully sensitive TB tends to be very treatable, and the three or four drugs that they use to treat it are very, very powerful, such that a patient is rendered non-infectious very quickly. Usually a total of six months of medication would be required. Multi drug-resistant TB is much more difficult to treat, much more expensive, and the treatments are much more toxic to the patient. The mortality associated with the disease would be much higher. It is about 50% in HIV negative populations. The data for HIV positive populations would be even higher again. So overall multi drug-resistant TB is a much more difficult contagious disease to treat. He was asked if it was linked particularly with certain parts of the world and he stated there are parts of the former USSR, South Africa and some eastern European countries, Latvia being one of them, in which multi drug-resistant TB is particularly prevalent. In South Africa the province of KwaZulu-Natal is one of the global epicentres of multi drug-resistant TB. Dr. O’Connor stated that the patient was highly infectious when she was first admitted to the hospital. He stated that the thing about TB is that it takes a long time to develop it and it takes a long time to treat it. The lead time is similar whether the infection is fully resistant TB or multi resistant TB. In order to determine drug sensitivity they have to grow the organism in a laboratory and it takes a long time to grow it in the laboratory. So based on the red flags that had been raised in his mind, he decided to start the patient on six drugs rather than the usual four. The patient had two young children at home who were also diagnosed with TB around this time. On the basis that she had two young children at home, they decided to discharge her from the hospital and allow her to return home, but she was encouraged to avoid contact with other individuals. Dr. O’Connor was not the physician responsible for treating the patient’s children. In approximately November or December, 2006, having been recently discharged from hospital, the patient was re-admitted with an ectopic pregnancy, and it was around this time that Dr. O’Connor received the drug sensitivity results based upon the samples taken from her some weeks previously. These results indicated that she had, in fact, multi-drug resistant TB rather than the common-or-garden sensitive TB. He stated that the fact that she was in hospital with an ectopic pregnancy gave rise to a lot of concern because it indicated that the patient was sexually active. This was undesirable given her HIV background and also because she was potentially exposing another individual to TB through coughing, despite advice to the contrary. He stated that patients with multi- drug resistant TB require to be put on a cocktail of drugs, some of which are quite toxic, and you have got to take things much more slowly in terms of that patient being in the hospital without detention, that is just trying to manage the patient. He stated that it was necessary for the patient to take all of the drugs. Most people with an interest in TB will treat with at least five, if not six, drugs. These are much harder on the system, and much less effective against TB itself, which is why the course of treatment for multi-drug resistant TB takes two years rather than the normal six months in a fully sensitive case. He was asked if her HIV status flagged any issues for him in relation to her treatment. He replied that the instance of multi drug-resistant TB is much higher in patients who are HIV infected than in those who are not. He discussed the patient’s case with a colleague who has an interest in HIV infection. Because of a combination of factors, namely, the patient’s history of non-compliance with medication for HIV and repeated non-attendance at clinics, this colleague felt it would be inappropriate to treat the patient with anti HIV therapy. There was also another specific issue to be considered. If you have a patient whose immune system is very depleted and they have advanced TB, and you start them on anti-retroviral therapy for their HIV, they can get what is called an immune reconstitution syndrome. That is a clinical picture whereby somebody who is not that sick all of a sudden becomes very sick because their immune system is reacting to the TB. So for all of these different reasons Dr. O’Connor felt that the patient should not be commenced on anti-retroviral therapy. Dr. O’Connor agreed that, even allowing for the added complexities of multi drug-resistant TB, the complications of this were particularly complex. Dr. O’Connor added that even at this time there were problems in terms of monitoring the patient’s TB status arising from intermittent refusals on her part to produce sputum samples. Because of this he was repeatedly required to perform bronchoscopy procedures in order to obtain direct culture samples. When asked by the court as to why this was happening, Dr. O’Connor expressed the view that it was a combination of a lack of appreciation by the patient of the seriousness of her situation, and probably a sense of persecution. He added:-

“You know, she had this very serious disease, and I think she probably had seen other people that she had known who had had the more common or garden sensitive form, who were treated maybe in a more relaxed fashion, I guess, and she felt…my personal feeling is that she felt she was being persecuted.”

He said that it was essential to obtain sputum samples from the patient for guidance as to progress of the patient’s treatment. He would be looking for the transition from sputum samples being reported as positive, to one being reported as negative. He emphasised that such an occurrence would not necessarily mean that the patient is no longer infectious, or that they have completed their therapy, but it represented a marker for probable early success. He said that without sputum samples the progression of the patient from being infectious to being non-infectious cannot be gauged. Dr. O’Connor stated that through November and December of 2006, he and his team continued to manage the patient as an in-patient in the Mercy University Hospital and she was accommodated in a negatively pressurised room. He stated that this is a room where the air pressure within the room is lower than the air pressure outside of the room. Accordingly, if somebody opens the door of the room, air flows in rather than flows out. This is a protective mechanism used specifically in the management of multi drug – resistant TB cases. The use of such a mechanism is recommended by the World Health Organisation and by The Centre for Disease Control. He felt that gradually, over a period of months, the patient became either non-infectious or considerably less infectious than she was. Dr. O’Connor stated that he had a number of beds in St. Stephens Ward of St. Finbarr’s Hospital where patients who needed to be continued to be managed as in-patients can be managed, and he arranged for the patient to be transferred there in February of 2007. After some further months arrangements were made for her to be discharged and monitored at home. To facilitate this, a system was put in place called directly observed therapy, whereby the patient’s ongoing treatment was supervised to ensure that she was taking her medications. Initially she was required to attend at a nearby clinic, but after a short time the arrangement was changed to one in which the relevant health professionals would visit the patient at home and supervise her in the taking of her medications there. The patient commenced on the regime of directly observed therapy in early April, 2007 and in the early stages it seemed to be working well and was regarded as being a success. However, after a period of time difficulties were experienced in getting the patient to co-operate with the regime. Dr. O’Connor described occasions when health professionals would call to the house and, though they could hear people inside of the house, the door would not be answered. In relation to this the court inquired of the witness as to whether the patient was an asylum seeker and, perhaps, under some pressure from the immigration authorities. Dr. O’Connor expressed the belief that she was probably an asylum seeker. At this point, counsel for the applicant informed the court that her instructions were that the patient had been served with a deportation order. Dr. O’Connor also related that on two different weekends the patient went to the UK and the process of directly observed therapy could not be fulfilled by the public health team. Dr. O’Connor described how during the period when the directly observed therapy regime was in operation, his team would see the patient periodically at his out-patient clinic at the Mercy University Hospital, and on these occasions they would try and take a sputum sample from her. Dr. O’Connor then spoke about a continuing concern about a lack of understanding on the patient’s part of the importance of compliance with her treatment regime, particularly in the light of the implications for the general public. He was asked to spell out what those implications were and he stated that while the transmission rate in the case of a patient infected with multi drug – resistant TB is no higher than it is in the case of the more common or garden drug sensitive TB, the mortality in the case of people who do develop multi drug – resistant TB is much higher. He emphasised that one in two people who contract this disease will die. He was asked whether if the patient did infect others it would be possible to trace the source of their infection back to her. He replied that there is a technology called RFP, which stands for Restriction Fragment Polymorphism that can be employed for that purpose, but unfortunately he did not have access to that technology. He stated that he was left to clinical intuition and patient interviews, that kind of thing. He was further asked if in the event that the patient was responsible for infecting others, and her movements were uncertain, whether it would be possible to contain the outbreak by the attempted tracing and isolation of persons with whom she might have had contact. He expressed the opinion that if the patient was highly infectious it would be impossible. He felt that at that time the patient in this case was probably not highly infectious as she had had many months of therapy following a prolonged period in hospital. The likelihood therefore was that she was much much less infectious than she had been, if she was infectious at all. Nevertheless, he regarded the reported incidents of her non-compliance with the regime of directly observed therapy to be worrying. As he put it “I became concerned that we were moving right backwards again, and that she would become infectious again”. He told the court that it had been emphasised to the patient repeatedly that it was essential for her to comply with her treatment regime. He described regular meetings with the HSE’s Department of Public Health at which the case was discussed, and he told the court that arising from ongoing concerns meetings were arranged with the patient on two different occasions for the purpose of re-emphasising and stressing in robust terms the importance of her compliance. He told the court that one of the purposes for which these meetings were set up, was to inform the patient of the powers available to them under the Health Act 1947, and “how we really did not want to get to a point where we would have to look at enacting the Act, but that it would be an option”. According to Dr. O’Connor these meetings took place in or about late August, 2007. Thereafter she continued having directly observed therapy at home, and was provided with some further supports by the HSE’s Department of Public Health. This continued until, in the words of Dr. O’Connor, “all of a sudden we had a phone call to say that she appeared in the A&E department ….(and).…. was having trouble coping at home, and I felt it best to just admit her and see where we could support her”. It was confirmed that this event occurred on the 20th September, 2007. Dr. O’Connor stated that when he saw her on that date his impression was that she was at her wits end. He felt that she was probably depressed because of her situation. He added “I think she probably felt persecuted that so many people were chasing her all the time to make sure that she took all these medications, and probably was finding it difficult, back in the home situation, having been in hospital for so long with her two young children. I think a combination of those things and also the fact that, as I mentioned, she had a friend who, as I remember, was from Zimbabwe, who was diagnosed with fully sensitive TB, who took six months of treatment and that was it. This person was HIV negative, and my feeling was that N. kind of said, ‘why am I being persecuted so much?’ despite us explaining the differences repeatedly”. Dr. O’Connor’s evidence was that she then stayed in the hospital briefly and after a short time discharged herself. He contacted the Department of Public Health and they managed to track her down to a location in Middleton. She had called to a friend’s house in Middleton. There were some young children in that house, and Dr. O’Connor stated that he and his colleagues were very concerned that she could potentially be exposing these and other young children to infection. He stated that at this point, having discussed the matter with the HSE’s Department of Public Health, his feeling was that they “probably had no choice but to admit her back in to the hospital under the terms of this Act”. When asked if she was still taking her medications he stated “No, she had stopped. In fact she has not taken her medication since that time”. When asked why it was felt that there was no option to invoking the statutory power of detention, he stated “I felt it was inevitable that she would develop infectious TB again for a number of reasons. Firstly, that she had taken only twelve months of what is recommended to be a twenty four month therapy. Secondly, and most importantly, that she had advanced HIV; in fact, she had AIDS. She had two AIDS defining illnesses. She had both CMV retinitis, which is a viral infection of the eye and she was also exhibiting what is called a Credit CE4 Count”. He explained that he was referring to an important blood cell count employed in the case of patients suffering from HIV/AIDS, and that a Credit CE4 Count is associated with very advanced end stage AIDS. He felt that with that level of immune system weakness she was at increased likelihood of developing infectiousness in the context of her multi drug – resistant TB. In reply to a question from the bench, Dr. O’Connor stated that consideration was given to the making of an application to the High Court in the patient’s own interest, and in the interest of the public, to have her medicated against her will but that this was not proceeded with, there being no precedent for such an application in a TB case. Dr. O’Connor confirmed that if she was taking her medication, and was taking it as prescribed for some period of time, that she would become non-infectious. He further expressed a reasonable degree of confidence that if she had started on her regime of medication at the moment she went into detention in December, 2007 she would be non-infectious at that stage (i.e. as of the date of his testimony), and would be out of hospital. The doctor stated he would like nothing better than to be able to release her from hospital, but felt that he could not do so in the public interest. He expressed dissatisfaction that the legislation apparently does not cater for the kind of impasse with which he and his team were now faced. He stated that, notwithstanding the patient’s refusal of treatment he has been reviewing her situation regularly. He told the court that he sees the patient himself, once to three times a week. She has been in a negatively pressurised room since the date of her detention, and has attempted to escape on a number of occasions. As a result of that she now has a security guard on the door to prevent further escapes. He stated that many many hospital staff members had tried to convince the patient to co-operate with treatment, but that nobody has had any success in that regard. The patient will not even provide samples for diagnostic purposes. He informed the court that some of the chaplaincy staff in the hospital had attempted to act as advocates for the medical staff, but that even they had not been successful in persuading her to give a single blood sample or a sputum sample. Dr. O’Connor was then asked for his views as to the patient’s ability to manage her affairs. He described how the patient’s behaviour had become progressively more erratic, or to use his exact words, “more fluctuating”, since her admission. He expressed the view that she did have the ability to manage her affairs the year previously, but he was not sure if she was now able to do so. He stated “I think there are times where she has spoken to a third person, a non-existent third person, and there are other times where she has been more subdued and lucid, and we are not sure whether there could be a physical basis for that, in that in this advanced state patients can get total AIDS dementia…or whether it is a reaction to her effective imprisonment for such a long time, or whether it is a combination of both”. Dr. O’Connor was asked whether in the course of reviewing her clinically, his opinion as to the necessity to keep her in detention had changed. He stated that he reviewed that decision on a continuing basis but that it had not changed. Indeed, the circumstances giving rise to her detention in the first place had probably deteriorated. He emphasised that he was obliged to use the word “probably” because “we cannot really tell; we cannot even do the specific tests that allow us to tell whether she is more infectious or less infectious”. Dr. O’Connor expressed a guarded prognosis in terms of the likelihood of her survival. However, contrary to expectations, she has actually flourished in the hospital setting. He stated that she has gained weight, and he is inclined to attribute this to the fact that her nutritional status is probably a lot better as an in-patient than as an out-patient. He was in no doubt that were she to be released from hospital, there would be a real danger of spreading an infection of multi drug – resistant TB to members of the public. He was asked what, in his view, was the optimum way in which he would like to be able to deal with the case. He stated:-

“I think if we had an absolute commitment from the patient to take the prescribed therapy for the duration, and we could get her restarted, I think we would be looking at another two years from the day that happened, and I think a large proportion of it would need to be done as an in-patient.”

He stated that absent that commitment he would be very reluctant to restart the mediation under any circumstances. He explained his reasons for this reluctance. He said that if a patient takes some medication on a Monday, and on Tuesday decides they do not want it, and they take it again on Wednesday, that would promote further levels of resistance in the form of TB that they have. He was asked if she started taking medication whether she would rapidly start to feel better and, perhaps, be more amenable to co-operating with the treatment regime. Dr. O’Connor did not think so. In his view it would take some time before she began to feel better. Dr. O’Connor was asked if it were possible to medicate her pursuant to a court order, how would that be done? Would she have to be sedated? What would happen? He stated that the optimal way of doing it would be to insert a PEG (Percutaneous Endoscopic Gastrostomy) tube, and to administer the medication through that. However, he would be concerned that if they put a PEG tube in, she would probably pull it out. He was asked if the patient gave any reason for refusing to take her medications. He stated it is hard to communicate with her at the best of times. He expressed the view that the patient has a low regard for him and implied that she blames him for her detention in hospital. He added “I think one of the reasons that she has hinted at, is that she took all the medications and that she took them for long enough, and that should be it, and she seems to have resolutely decided that she will not take any more”. Dr. O’Connor concluded his evidence in chief by stating that he still holds the fears that caused him to call for the invocation of the statutory power of detention in this case.
Dr. O’Connor was then cross examined by counsel for the applicant. He was asked how she expressed her decision not to co-operate with treatment. Dr. O’Connor stated “She just simply refused. She would either not respond or just say no, that she is not going to take the medication”. He agreed with counsel that as things stand he would never be in a position to give a certificate that she is no longer a probable source of infection. He was asked if there was any reason why the patient had not succumbed to Tuberculosis thus far, having regard to her HIV status. Dr. O’Connor was not able to say and he confirmed that he was unable to ascertain why it is that she appears to have rallied. He stated that “every day we are surprised by individual cases in medicine, but we have not been able to take her blood or even do the x-rays to see are things improving, or in which direction they are going. I think nutrition is a large part of it. I think in the community she was probably very malnourished, and I think in a hospital setting her nutrition is better. But even allowing for nutrition, based on the base line data, we would have expected that she would have deteriorated by now”. He then added that it was important to take into account that she exists in a very sterile environment by virtue of the fact that she is accommodated in a negatively pressurised room. Accordingly, she was less likely to be exposed to the kind of diseases that people who have advanced HIV/AIDS succumb to. He was asked if he agreed with the patient’s mother that the patient presents quite irrationally. He agreed that she did, adding “That’s been my feeling from the start, in terms of the difficulties with compliance and the insight and understanding into the infectious nature of both her HIV and her drug resistant TB. I have alluded already to one instance of, you know, her lack of rationality in terms of the HIV, and there are certainly several other instances of that, and overall, the whole thing seems to have been very irrational in terms of how she has dealt with it, or how she has processed the information and the risks associated with these two diseases, but in particular, multi drug – resistant TB, which is our main concern”. When probed for more detail on his views as to whether or not she is a person who is able to take care of her own affairs, Dr. O’Connor stated “I think increasingly less so. You know, she came from a background of probably a long history of struggling in South Africa, and also struggling in this country when she arrived with two young children to look after, but because of all that has been going on over the last few years, I think increasingly her ability to take care of herself and make her own decision has diminished. I alluded already to the two factors that I think that are playing a part here in the intermittent aspects of that decline, and to just reiterate those, that can be HIV dementia, that could be a real physical process, or it could a psychological or behavioural response to her confinement. These are my opinions”. When asked again about his views as to her capacity to manage her affairs at the time of which she was detained he stated “I think she was unable to cope, but I think her overall psychological situation has deteriorated since, and I would be surprised if it had not, given the circumstances of her confinement since”. He was pressed as to whether he felt she is the type of person who could vindicate her own rights, who could see through a process of standing up for herself and dealing with people in authority. He replied “I would have generally thought so earlier, and I would have given specific thought earlier as to whether that was the case. Earlier into things, the answer is yes. I am increasingly conflicted based on my experience of her over recent months”. Dr. O’Connor was then asked whether there had been any psychiatric assessment of the patient in the lead up to seeking a detention order in respect of her. He was unable to say but he confirmed that “We have endeavoured to have her reviewed formally by a psychiatrist repeatedly since her admission, and, you know, the feedback that we have had on a continuing basis is that she is capable of making her own decisions; that, even though she may be depressed, she is not incapable of making of her own decisions. For obvious reasons, we have wanted to do that because of the fact that we knew ourselves that this case would be looked at ultimately”. When asked what he meant by that, he said “We knew this case could not go on for ever like this, and, you know, I guess we wanted to be absolutely sure that we were doing things in the right way with her, or at least as best we could”. He was asked if, in relation to his own dealings with the patient, he found her somewhat irrational. It was put to him “Did you not experience the speaking to people who were not there, making bizarre accusations about people and the like, was that something that you experienced with her on a weekly basis?” He replied “Not on a weekly basis. There were moments when I came in when – her mood would fluctuate, and she would become very angry at times, and she would become physically violent with some of the other staff at times. It was almost like as if there were kind of bubbles at the top and then she would be lucid again for several days afterwards. And, you know, we felt collectively that this was, again, a reaction to her situation, and an understandable reaction to some extent. There were, certainly, probably two occasions where I found her talking to a third person who was not there”. He gave an estimate that these occasions had occurred between three and six months previously. He further stated that those events “would have particularly precipitated us to ask the psychiatrist to come and see her”. He confirmed that the refusal to take medication pre-dated those kind of behaviours. Dr. O’Connor accepted that her behaviour had disimproved and felt that it had to be viewed against the background of the two factors that he had mentioned previously, namely possible HIV dementia and reaction to her confinement. He also expressed the view that there might be cultural components to her behaviour as well. Dr. O’Connor was then asked about the views expressed in his report to Dr. O’Sullivan concerning the patient’s mental state. It was put to him “You had significant concerns about her mental capacity at that stage, or should I say about her state of mind?” He replied “I think about her state of mind, much less so her mental capacity. I think she was depressed because of her overall situation, and also as a reaction to some of the medication she is on, or she was on, which are notoriously associated with depression; I felt those things were contributing in part to her inability to cope in the community”. It was put to him that he had stated in his report to Dr. O’Sullivan that “Her behaviour became more inappropriate over the subsequent weeks. She became more depressed and upset. She was reviewed by liaison psychiatry on a continuing basis”. He was asked whether at the time he expressed that opinion, anyone had asked him as to whether he had a view about whether the patient was capable of acting on her own behalf. He replied “No”. That concluded Dr. O’Connor’s evidence.

On the 29th October, 2008, the court heard the evidence of three witnesses namely, Dr. John Cooney, Dr. David Dunne and Dr. Margaret O’Sullivan. It is proposed to review the evidence of each in turn.
The evidence of Dr. John Cooney
Dr. John Cooney told the court that he holds the position of Clinical Director with the Health Service Executive since 1994. He has responsibility for the North Lee Mental Health Services in Cork City and for a portion of Cork County. He has 25 years experience in psychiatry. He said that he works primarily at the Mercy University Hospital and for the most part he sees patients on the general wards, that is the medical and surgical wards of the hospital. He explained that the psychiatric services at the Mercy Hospital are run by the HSE. The rest of the hospital is independent. It is a voluntary hospital. As he put it, his Unit is like “an island of the HSE within the Mercy Hospital”. Dr. Cooney confirms that he had seen the patient at the centre of this case on three occasions. He expressed a reluctance to speak about her case as he did not have her permission to give evidence on her behalf. The court noted his difficulty, but suggested to him that it was both in the public interest and in the interest of the patient that he should give evidence to the inquiry. Dr. Cooney stated that he had no difficulty in cooperating with the court, but that he just wanted to record that he did not have the patient’s permission. The doctor then stated that he was asked to see the patient in early December 2007, for the purpose of assessing “her ability to consent and her competence around the treatment positions”. The request to see her came from Dr. Terry O’Connor. He was informed that she had a serious infection with tuberculosis, which was a resistant infection, which had not responded well to treatment up until that point in time, that she also had HIV infection, that she was a lady from South Africa, and that this was a part of the world where there were very high levels of these types of diseases and also very high levels of resistant forms of tuberculosis. He explained that he had three interactions in all with her. He characterised the first one as being reasonably satisfactory. The two subsequent ones were unsatisfactory from his point of view, as he was unable to do a detailed assessment on these occasions. His first interaction with her was in early December 2007, when she was in the Mercy University Hospital in a voluntary capacity. Although she was there in a voluntary capacity, she was talking about leaving at that stage and was refusing treatment or beginning to refuse treatment. The patient told Dr. Cooney that she was of the opinion that she was required to have treatment for a certain period of time, which was a year. She felt that she had done that, she had done more than that. She had kept her side of the bargain and now she felt that she was finished with the treatment, that she had done her bit. Dr. Cooney stated that when he saw her on this occasion she was in her isolation room. She was alone when he saw her and he was unaccompanied. He had a conversation with her, but he did not record the exact duration of it. He thought it was probably of around 40 minute’s duration. In any event it was a reasonably lengthy interaction and it ended amicably. He stated that he was not dismissed, which was something that happened in his subsequent interactions. He was asked if he was aware, when the lady told him that she had done her bit, that she was not at that time adhering to her medication regime, despite admonishments that she should do so. Dr. Cooney confirmed that he was aware of that. He was asked if her refusal to take her medication was due to a sense of hopelessness on her part or was it the case that she simply did not care. In reply Dr. Cooney stated that when he saw her in December 2007, her mood was reasonably good. She was angry, she was annoyed and she was frustrated. She was talking about wanting to get out of hospital, to get home to her children and the sort of things that would be considered normal for somebody who was a patient in hospital. She felt that she had done what she was supposed to do in terms of treatment. She also felt that hospital had not done her good. She has an increasing blindness problem in one eye as a result of her AIDS. She felt that she had been quite well coming into hospital and that now as a result of the hospital’s interventions she was going blind in one eye. She felt that this was proof of her need to get out of hospital. Dr. Cooney stated that he tried to gauge her experience in dealing with other people with tuberculosis infection and HIV infection, but that she did not really want to talk about that, except to tell him that she had known lots of patients who had had TB, who had had treatment, who had finished their treatment and who were fine. He added that he suspected that she also knew lots of patients for whom that was not the case, but she was not willing to share that with him. In relation to her overall mental state, he felt that at that time, in early December 2007, she was not exhibiting any significant abnormalities and there was certainly nothing that would have led him to conclude on the basis of a reasonably decent interaction with her that she was incompetent. Dr. Cooney was asked if the patient understood the nature of his visit or why he was present. He stated that he explained to her that he had been asked by Dr. O’Connor to see her, that he was a psychiatrist and that he was there to try and decide was she mentally well. He stated that he did not go into the specifics of assessing her competence to take decisions but that, in any case, he was not just there for that purpose. There was also the question of whether or not she was depressed or otherwise mentally unwell. He stated that before he saw her in December 2007, she was previously know to his unit although he had not seen her himself. His Registrar has seen her in January 2007, and had had quite a detailed interview with her. The Registrars view at that time was that she had a significant degree of depression and he recommended anti-depressant medication. However, there was nothing in his note, and he would have discussed the case with Dr. Cooney at the time, suggesting any doubts as to her competence to take decisions. Dr. Cooney stated that after his interview with the patient in early December 2007, he dictated a letter to Dr. O’Connor setting out his views. His advice to Dr. O’Connor was along the lines that he could not see that she was incompetent to take decisions. Moreover, as far as he was aware, there was a presumption of competence in Irish law in the absence of anything to indicate the contrary and he would have advised Dr. O’Connor that that was the position. He explained later on that his understanding of the legal position was based upon his experience of having to deal regularly with patients detained under the Mental Health Legislation. In summary he felt that the patient was competent in terms of decisions regarding her treatment. He suggested to Dr. Cooney that it might be possible in terms of infectious disease control to detain her in hospital and that the Mercy University Hospital should seek legal advice around that. Finally, he stated that he expressed a willingness to see the patient again.

The next time that Dr. Cooney saw the patient was on the 22nd May, 2008. In the meantime she had discharged herself from hospital not long after he had seen her in early December 2007, and within a further short time had been returned to the Mercy University Hospital on foot of a detention order made under the 1947 Act. He next visited the patient on the 22nd May, 2008 pursuant to a further request from Dr. O’Connor seeking advice about her competence to take decisions and her mental state. When he saw her on the 22nd May, she was in an isolation room and subject to an infection control regime which made his job very difficult. Before going in to see her he was required to don protective clothing involving a very heavy mask, gloves and an apron. When he saw her on this occasion she was very angry. She was protesting against what was going on. She had barricaded herself into the en suite bathroom of her single room. She had brought in the mattress from her bed and was sleeping on the floor of the relatively small en suite. His interaction with her was very brief and conducted through a slightly ajar door leading from the en suite out into the main body of the bedroom. He was only able to speak with her for five minutes or less on this particular occasion. He stated that she told me to go away basically. He said that he tried to talk to her about her understanding of the treatment for her TB and her situation, but he really did not get any meaningful response from her. She simply did not want to talk to him and made that clear. Dr. Cooney’s impression was that she was pretty much angry at everybody. His understanding was that she displayed the same sort of anger towards all of the staff around that time. In response to a question from the Bench as to whether she was psychotic, Dr. O’Connor felt that she was not. He stated, “If I can explain by giving an example. If she felt that she did not need treatment because God had told her she was cured, that would have a significant impact on my decision around whether she was competent or not. Her logic in believing that she no longer needed treatment was simply and understandably that she had gone….., as far as she was concerned, she had gone through the hoops.”

At this point there was an intervention from the bench suggesting to the doctor that there was a difference between competence and capacity. It was suggested to him that one could be competent to make a decision but not capable of making a decision, that to be capable of making a decision you have to have the necessary information. He was asked was she capable of making an informed decision? Dr. Cooney replied that his information was that she had been advised repeatedly about her situation and that she had taken that on board, that she knew what they were telling her. He told the court that she was able to repeat back to him that “they tell me that I’m to have more treatment, but I have had enough”. He thought that she had felt, to some degree, in the early parts of her treatment, coming in and out as an outpatient, that she was getting different advice from different doctors. It was true to say that she was on a very complicated treatment regime for her illnesses. So in one week, she might be told something and then, maybe a week later, she might be told something else. Dr. Cooney thought that she felt that she was a bit messed around by the services, that she had done her part and now they were telling her she still needed treatment. In his view she clearly knew that message and knew that from the very start but felt she had had enough and felt she would be better off out of hospital.

Dr. Cooney stated that it was not possible for him to have a broader discussion with her “and say well, you know, I know you feel you have done your bit and you have done your bit, but the advice is that you could infect other people; would you not think of the potential adverse consequences of that and how you might infect your loved ones, your friends, your neighbours? We never got the conversation onto that level. She did not want to go down that depth into it.”

Dr. Cooney characterised her degree of protest as pretty extreme. He was asked if she was aware that if she accepts treatment the likelihood is that, after a reasonable period to time, she will become non-infectious and may be able to go home. Dr. Cooney replied that he did not think that that was the likely situation. It was then pointed out to him that Dr. O’Connor had given evidence to that effect. Dr. Cooney said that it was his understanding that, because of her combination of problems, she had a very poor prognosis with treatment or without treatment.

Dr. Cooney expressed the opinion that the patient was aware that if she accepted treatment she might be able to go home after a reasonable period of time but he hadn’t discussed that with her directly. He felt that that was Dr. O’Connor’s role as he was her respiratory physician. Dr. Cooney said that when he saw the patient most recently, about a week prior to the hearing, she actually looked better than he had seen her on the two previous occasions. She is eating better and has moved back to the hospital bed. She is co-operating at that sort of level. However, it was his understanding that she still refusing any investigation, blood tests, sputum tests, x-rays and so on. He said that when he went to review her recently, again at the request of Dr. O’Connor, he found that she had the T.V. on when he went into the isolation room. She very quickly found the remote control and turned off the sound, so they could have a proper conversation. He introduced himself again and explained the business. They had a brief conversation but as soon he turned to the treatment of her tuberculosis and her thinking about that, she turned into the wall and told him to leave. She stated that she did not want to speak with him. Following this meeting he could not see that there were any grounds for believing that she was incompetent to take decisions. Further, he emphasised that this encounter represented a far from ideal examination. She did not allow him to go into any detail and he was only making a best guess. He stated that he did have an opportunity to talk with her mother a couple of days later. He stated that in the course of his conversation with the patient’s mother, he tried to get information concerning the patient’s pre-morbid personality. He also tried to acquire some understanding as to her background with a view to trying to place her ideas and her beliefs in a cultural setting. He stated that he formed the view, from talking with the patient’s mother, that the patient was always quite a stubborn and headstrong person who tended to do her own thing and who had in the past led a somewhat irresponsible kind of lifestyle. The mother told him that she had tried to persuade the patient to accept treatment. The patient’s mother also told Dr. Cooney that in the course of one of her visits to the patient she had put an aunt, who is a nurse in South Africa on the mobile phone to the patient, in the hope that this aunt would advise her and try to get her to co-operate with treatment. However, the patient had refused to listen to the aunt speaking on the phone and had promptly given the phone back to her mother. Dr. Cooney learnt from the patient’s mother that the patient grew up in Johannesburg, which is a large city so that she would have had the sophistication of a person coming from a large city. It wasn’t that she was from a very remote area where there might not have been a lot of public health knowledge or information available. Further, her mother confirmed that a number of people in their environment had both TB and HIV. The patient’s mother also raised with Dr. Cooney the circumstance that in the course of one of her visits she had found the patient having a conversation with a non-existing person. Dr. Cooney expressed the view that there was cultural element to this. He stated that if any of us were in an isolation room for a year with very little interaction, it would be within the range of normal behaviour to talk to yourself or talk aloud or talk to people. He stated “it’s a difficult one to be 100% certain of”. He asked was he concerned about possible psychosis and said “Well, that’s obviously – the question is whether this is definite evidence of a psychosis, and I’m not certain that it is. The mother advised that the patient told her that ‘well you can’t see her, but I can talk to [her]’. Normally somebody having auditory hallucinations would expect other people to share them. Such hallucinations had been described in cases of severe isolation such as lone yachtsmen, people like that, who have no company for periods of time, that people can – so I’m not certain about that. But my overall conclusion, again, would be because of the presumption of competence and because of the poor co-operation of the patient and really the inadequate mental state examination that I have been able to conduct last week and in May of this year, that I couldn’t form an opinion that she was incompetent.” Dr. Cooney was asked by the judge as to whether when he spoke of “the presumption of competence” he was talking about the legal presumption of competence or a medical presumption of confidence. He replied: “The legal presumption of competence”. When asked if there was a medical presumption one way or the other and he stated: “Well, I presume, as a consultant psychiatrist, when I’m asked to see people, generally there is a question mark around that. If I meet someone in the street, obviously I am assuming that they are competent, but I deal with a lot of incompetent people in the nature of my work. So you would always have a question mark. If somebody tells me something that sounds unusual, my first or second thought would be: could this be a delusion, a false belief? Is this appropriate? Does the evidence support this as being reality? He stated that to arrive at a diagnosis of psychosis he would be looking for a timeframe. You would be looking for this to be a predominant effect for some several days. You wouldn’t be just thinking of somebody having one solitary experience.” He stated that he had asked the nursing staff on each of his visits to the ward as to how they found the patient, was she doing anything bizarre, was she doing anything that seemed to support that she was confused or bewildered ,and the nurses hadn’t volunteered anything in that regard. He considered that to be very important. Further, Dr. O’Connor hadn’t reported to him that the patient was exhibiting bizarre ideas or that she had been telling him of hallucinations or anything of that sort. Dr. Cooney had confirmed that he had had an opportunity of seeing Dr. Dunne’s report. Dr. Dunne had seen the patient on the day after Dr. Cooney’s most recent visit. He was asked to comment on Dr. Dunne’s conclusion. Dr. Cooney said that he couldn’t either agree or disagree with Dr. Dunne’s conclusions. He did, however, point out that a once off assessment was limited in what it could do. That said, he acknowledged that Dr. Dunne had the advantage of having the patient’s mother present for the interview and also that Dr. Dunne’s interview with the patient went on for a fairly lengthy period of time, certainly far longer than Dr. Cooney’s two interactions with the patient in 2008. Dr. Cooney felt that the patient does not have a mental disorder within the meaning of the Mental Health Act, 2001 which is defined as a mental illness, severe dementia or severe intellectual disability. That concluded Dr. Cooney’s evidence in chief. He was then cross-examined by counsel for the applicant. He agreed with counsel that his assessments in May, 2008 and October, 2008 were not properly conducted psychiatric assessments by any means. He felt that his interaction with her in 2007 did constitute a reasonable assessment. He would not accept, however, that the brief encounters he had with the patient in 2008 were of no value. He stated “I wouldn’t agree with that. I could not carry out a comprehensive psychiatric assessment but it could well be possible to conduct a psychiatric assessment in three minutes depending on the nature of the person’s presentation”. He went on to explain that he was satisfied that she did not have a delirium. He said that a delirium is a relatively short acute confusion state that would come on usually in the context of a significant medical illness, infection or perhaps intoxication. He stated “it would be most bizarre for somebody with a delirium when you go to talk to them, to say, “hold on a minute I will find my remote control and I will turn off the television”. He agreed that when he saw the patient in October he hadn’t seen her in the previous five months. It was suggested to him that following an interaction with her in October, lasting less than five minutes, it wouldn’t have been possible for him to arrive at a view as to whether she was competent to take decisions or act on her own behalf. He replied: “I was looking to reach conclusions in the opposite sense in terms of her incompetence rather than her competence. Perhaps we are getting into semantics. I certainly would have liked to have had a much longer interaction with the patient. I think that’s clear. I would have liked to have been able to discuss a range of situations with her, including her understanding of the infectious nature or not of her tuberculosis and of the danger to others. Asked by the bench whether it was possible that the patient does not understand fully the situation she is in, perhaps not for mental illness reasons but out of unwillingness to receive and take on board and appreciate the relevant information, the doctor said “denial is a very common defence mechanism that we all use when we hear bad news. At least initially. You know, ‘It can’t be true’. ‘It isn’t so’. ‘That’s wrong’. So anybody is going to use denial. Obviously it would be unusual to persist with denial, despite evidence to the contrary, over a long period of time”. He was then asked whether, if persistence with denial was occurring over long period of time, that raised questions of a mental health nature. He said “obviously it does raise questions in that area, but I think, given my understanding that she is of a very stubborn disposition, you can see somebody, I think, without having a mental illness, digging their feet in and saying ‘I’m not consenting to this, I want to go home, I have had my treatment.’ I think you can do that without having a mental illness.” Dr. Cooney confirmed that there was a security guard with the patient all of the time. It was suggested to him that given the fact that she wants to escape, her stance is entirely illogical. Moreover to date she hasn’t initiated any process in terms of an appeal to the Minister which might lead to her release in hospital. He was asked if these facts gave him cause for concern about her competence. Dr. Cooney said that it didn’t give him cause for concern. He felt that her views around TB treatment and AIDS treatment were influenced by the fact that she comes from South Africa. She had been treated there herself for tuberculosis in the past and she knew friends and other patients who had been treated there. Moreover it was his understanding that there is provision in South African law for compulsory detention and treatment of tuberculosis and she would know about that. He acknowledged that she might not appreciate subtle differences between Irish Law and South African Law. He speculated that a possible reason why she had not mounted an appeal was that a person might not mount an appeal if she believed deep down that her appeal wasn’t going to succeed. Dr. Cooney was then asked when did he first hear that patient had been talking to herself. He said that it was in the last couple of weeks. He stated that he had not been told of that previously by Dr. O’Connor. He wasn’t aware in May of 2008 that there was any suggestion of strong evidence in support of hallucinations. He reiterated that on the second and third occasions that he had seen the patient, he had had very little chance to examine and assess her. However his opinion was based primarily on the relatively lengthy interview that he had with the patient in December, 2007 when she was far more co-operative with him and he suspected far more co-operative than she had been with Dr. Dunne. He characterised that assessment as quite a significant assessment and he stressed that the patient made her feelings and her logic clear to him at that stage. He asserted that while criticisms might be made of too much reliance being placed on his recent brief interactions with the patient, nevertheless “you must give a fair degree of credence to my experience in examining her because even if she has become more incompetent, which is debatable, I think her longstanding feelings or her well-established feelings around the treatment of her illness have to born in mind by the court as well”. Questioned again as to the reasons why he had been asked to see the patient, Dr. Cooney stated it was quite a broad referral. There was a background history of depression. Patients with tuberculosis and patients with AIDS both have a much higher incidence of psychiatric illnesses. Moreover one of the most important aspects to the referral from Dr. O’Connor’s point of view was to obtain an opinion as to the patient’s ability to consent or to refuse treatment. He did not think that she was taking anti-depressant medication when he saw her in December, 2007. However, anti-depressants were being prescribed to her at that time. When asked if he was concerned about the fact that she wasn’t taking her anti-depressant medication he stated that the reality is that a large number of people don’t take the medications prescribed for them. That fact that she wasn’t taking her medication wouldn’t give him grounds to suspect that she was not competent to take decisions. He reiterated that she was refusing to take all medication and he stated “to be honest with you, her anti-depressant medication would have been the least of anybodies worries at that point in time. It would have been far more important that she was having her anti-tuberculosis medication and her AIDS related medications”. He did not regard the fact that she was supposed to be taking anti-depressants, and yet wasn’t taking them, as remarkable. Dr. Cooney regarded the fact that she was taking none of her medications as reflecting a lack of co-operation. It did not suggest a lack of competence to take decisions or incapacity on the part of the patient to act for herself. He stated that in 99.5% of cases not having a depression treated was not going to lead someone into a situation where they would become mentally incompetent. When asked if not having a depression treated would make her more vulnerable, he stated “I think I would have to make a distinction between the treatment and the illness. If you have a clinical depression, then people often have feelings of hopelessness, helplessness and can’t see solutions and are unlikely to vigorously pursue very much. People with significant levels of depression find it hard to get out of bed in the morning, let alone go off and embark on a course of seeking legal advice etc. It’s a fact of life that depression is a hugely common condition, you know at any one point in time affecting many of the population”. He did not consider that depression would affect a person’s capacity to make decisions and to make judgments unless they had quite a severe form of it. It would be extremely unusual within the diagnosis of depression to have what is called a psychotic depression, which is a particularly severe type of depression, where the person loses contact with reality and can have false beliefs or hallucinations. There was nothing in Dr. Cooney’s assessment of the patient to support the diagnosis of psychotic depression. Dr. Cooney was of the view that it was not surprising or unexpected that a person in the patient’s situation would choose not to fight against or challenge her detention. That was his experience in the case of patients detained under the Mental Health Legislation. A lot of his patients didn’t want to go to the Mental Health Tribunal. Moreover these wouldn’t necessarily be people who are psychotic. He felt it was not uncommon for people not to want to fight against the system. Dr. Cooney did not agree with the suggestion that the allegations made by the patient against Dr. O’Connor, and described in the applicant’s affidavit, namely that he was liar, that he had raped the patient in the presence of her mother, and had held a gun to her head, were patently delusional allegations. He felt that they were explicable by the application of a very simple logic, namely that the best form of defence is attack. Her behaviour could possibly be explained in the context of creating a diversion and of not wanting to deal with questions that were being asked. He explained that he had had that experience lots of times with other patients, where somebody will throw in something that is totally off the topic as a mechanism to create a diversion because they don’t want to talk about what it is that you are actually bringing up with them. He was asked if the allegations were open to any other interpretation. In reply to that he stated: “Well, obviously, you could conclude that this was an inappropriately held false belief which, in psychiatric terms, is a delusion, but you would have to see it in the cultural background as well, and in how people deal with situations. I am not sure … a lot of people in Irish culture will deal with allegations by slinging mud at the other person. It may be something in that context, I can’t obviously be certain, I am just speculating.”

It was put to Dr. Cooney that Dr. Dunne had stated in his report that Dr. Cooney’s view was “that he was unsure, but thought on the whole, that it was best to assume the patient was fit to take decisions.” Dr. Cooney said that he had not discussed the case with Dr. Dunne at all, though Dr. Dunne may have had access to correspondence between himself and Dr. O’Connor on the patient’s file. He disagreed strongly with Dr. Dunne’s paraphrasing of his opinion on the case.

Dr. Cooney was asked to comment on selected quotations from Dr. Dunne’s report. In particular, the following quotation was put to him:-

“I have severe doubts about this, but at the same time I am unable to say whether when she wasn’t in the kind of state I saw today, she would be capable of taking decisions, but in the state I saw her today, in my opinion, she has some sort of psychotic process or disorder, almost certainly a long term confusional disorder secondary to serious physical illness in the form of TB and HIV positive, with the emotional trauma of knowing that neither her TB is getting better and also that she needs treatment for the HIV which perhaps she doesn’t fully believe in, and so is trying to deny that she has it altogether. This will increase her tendency to get delirious or confused in the medical sense.”

Dr. Cooney commented, “I think if you isolate somebody for a long period of time, it obviously is going to have an effect on their mental state. And you may end up in a situation when it has gone on for a long period of time, where people actually give up wanting to fight against it. I do not agree with much of what Dr. Dunne has put in his report.”
He went on to disagree with the suggestion that the patient had a delirium, citing in support of his view his earlier observations concerning the patient’s use of the TV remote control to facilitate the conversation between them. Dr. Dunne had related in his report that the plaintiff had spoken at “a ferocious speed and I could not make out one word she was saying”. According to Dr. Dunne such fast talk can be characteristic of a delirium. Dr. Cooney disagreed that because the patient in this case was talking quickly it was suggestive of a delirium. He stated “I think you would have to look at where she is coming from, her background, her style of interacting, how she normally would talk with her mother and things like that, before you could reach a conclusion that this was bizarre”. Dr. Cooney pointed to what he had actually said in the course of his recent letter to Dr. O’Connor setting out his conclusions as to the patient’s mental state. He had told Dr. O’Connor that it seemed to him that having regard to the presumption of competence that exists and, given the lack of any evidence of delusions affecting her judgment and the absence of any demonstrable confusion, that one must still presume she has mental competence. He was then asked whether, as a psychiatrist, looking at the length of time the patient has been in custody, the nature of that custody, the physical difficulties that she suffers from and the fact that she has a background of depression, he would have any concern as to her capacity to act on her own behalf at any level. He replied that he had not particularly considered that. He was then asked if the patient is an intelligent person, and he stated “I have no reason to suspect that she does not have normal intelligence”. He did not know what her educational attainments were. He thought that she was literate but was not sure. He had no reason to believe that she was learning disabled in any way. Dr. Cooney was then asked to comment on Dr. O’Connor’s evidence concerning an impression on his part that the patient’s mental state had deteriorated over the last two years. Dr. Cooney stated that he did not hear Dr. O’Connor’s evidence but that he did not disagree. He readily acknowledged that Dr. O’Connor had been seeing the patient for longer than he had and that he had also been seeing the patient very regularly. He felt in the circumstances that the court should give weight to Dr. O’Connor’s evidence. However, he felt that the court should also take into account his (Dr. Cooney’s) opinion based upon his three assessments. He acknowledged that his recent assessments had been very brief because of the patient’s refusal to co-operate with him, but he emphasised that he was an experienced psychiatrist and stated “We can reach quite important conclusions on the basis of brief assessments with sufficient collateral history and support from others. So, I think, my reasonable detailed assessment of her of December of last year, I think that is an important thing for the court to take into account as well”.

Dr. Cooney was then cross examined by counsel for the second named respondent. He said that he spoke to the patient in English, and that any difficulties they had were not language based, as far as he could tell. He felt that she was not disadvantaged by speaking in English, but that there was certainly a significant cultural element to her situation, and his. He was asked if the patient was severely depressed. He stated that when he saw her in December of 2007, he did not think she was severely depressed. He did not know if she was on anti-psychotic medication at any stage. He certainly did not recommend anti-psychotic medication for her. He was asked if he observed anything that would have led him to question the patient’s judgment. He replied that from the very start her judgment was at issue. That was a given in the situation. However, taking bad decisions or exercising poor judgment does not equate to being incompetent to take decisions, or to being delusional. He was asked if he had seen anything that would lead him to change his opinion as to her mental state. In reply he said “Certainly I would be concerned by what the patient said to Dr. Dunne, that I just heard about this morning, and I would be interested to see if that becomes something that she retains and repeats over a long period of time, because then – I am certainly not saying that my opinion is absolutely 100%. I can only give the court my best opinion as it stands. But if the patient is saying increasingly bizarre things that are persisting over a long period of time and maintaining that in the light of evidence to the contrary, and arguments to the contrary, obviously I would have to take that on board over a due course”. He reiterated his view that the bizarre things that the patient was saying might possibly be a diversionary technique and that they might also possibly be evidence of psychosis. However, in his view it was not possible to say that she was psychotic on the basis of one episode. The patient needed to be kept under observation and he needed to keep in mind that there may be something new developing. Unfortunately her illnesses have a very poor prognosis and her illnesses also have a significant correlation with dementia and other mental health problems. It was therefore perfectly conceivable that she would develop dementia and other mental health problems. That was why he expressed a willingness to Dr. O’Connor to see the patient again at any time should they feel that she was in a delirium or that she was beginning a dementing process. Having been asked by the bench about the patient’s ability to assimilate information given to her for the purpose of making an informed decision, a proper decision and a rational decision, Dr. Cooney said “from my point of view, if somebody is faced with a complex decision to make, if you give them a whole load of information, which is increasingly becoming the fashion, and the requirement from a medicological point of view, you actually end up with the patient saying ‘For God’s sake doctor, just tell me what you would do if it was your mother. I do not want all this information’”. Dr. Cooney explained his approach in that situation, he said “we would look at someone and say ‘Look, can you explain to me what it is the doctors have advised you?’, and if that person can give me a reasonable account of what the doctor’s advice has been, and say ‘I have heard their advice and I am not taking it ……..’ ”. It was pointed out to Dr. Cooney by the bench that the lady’s position seemed to be ambivalent. On the one hand she does not want to stay in hospital, but on the other hand she will not listen to the information which would enable her to leave hospital. Dr. Cooney countered “Well, she will not take advice”. He was asked if there was a difference and he said “I think so”. He acknowledged that the patient was under great stress and that there were a lot of stressors in her life, both medical stressors and social stressors. He said there is clearly evidence that the longer a person spends in a situation, the more they get into a sort of learned helplessness mode, so that if the door is opened eventually and somebody says “You are free to go” she might feel “I am too scared to go” or “I am too frightened. This is what I know and this is what I kind of tolerate”. Dr. Cooney related that he understood from Dr. O’Connor and the nurses on the one hand, and from the patient’s mother on the other hand, that the patient’s interest in her children had significantly reduced. This contrasted with her attitude when Dr. Cooney met her first. Dr. Cooney felt that this was due to a loss of contact with the outside world having been in isolation for a year in circumstances where she has minimal interaction with other human beings who are, in any event, all masked, gloved and wearing aprons. That concluded Dr. Cooney’s testimony.
The evidence of Dr. David Dunne
The court then heard testimony from Dr. David Dunne. Dr. Dunne was known to the court. He is a consultant psychiatrist and psychotherapist with very many years of experience. He explained that he was asked by the applicant’s solicitor to carry out an assessment of the patient, and that he did so on the 23rd October, 2008. The purpose of his examination was to assess the patient with respect to her capacity to take decisions and her general mental health. He confirmed that he had been present in court during the testimonies of both Dr. O’Connor and Dr. Cooney respectively. He described his own examination of the patient. He had a consultation with her in her isolation room. He stated that there was a lot of concern in the hospital for his welfare. One of the nurses told him that she would have to come into the room with him in case accusations were made against him by the patient. He was also required to gown up and wear a mask, and he was given glasses or goggles in case the patient spat in his eyes. He was told that there was a genuine risk that this might happen. He was also told that the patient had attacked people before. Before he went into the room he was told that the patient’s mother was already there and he was asked how did he feel about that, and he replied that he thought it was a good thing. He stated that the patient’s mother stayed throughout his assessment and he felt that was helpful. Dr. Dunne told the court that in the course of his conversation with the patient she informed him that she had been sexually assaulted by Dr. O’Connor, that this had happened in front of her mother and a number of other people, including Dr. O’Connor’s wife, who is called Eileen and who she said worked in the kitchen in the ward. He said it was very hard in the course of the interview to get the patient away from this. She would come back to it spontaneously. Dr. Dunne said he subsequently established afterwards from the patient’s mother that there were times when she was mostly alright, but that there were days when she talked to somebody else (i.e. a non-existent person). Dr. Dunne said the patient’s mother also told him about an event in May, “when she got so suspicious or whatever, that she took the mattress and slept on the bathroom floor”. Dr. Dunne said that he tried to talk to the patient about other things, apart from treatment, for the purpose of seeing if she had some sort of organic mental condition and to test her orientation. She was extremely resistant and would not answer simple questions like, roughly how long was she in the Mercy, how long was her mother with her, how often had she been visited. He said that this can be a sign of somebody who has an organic brain condition and he digressed to explain that he had significant experience in dementia, having run the first dementia unit in the public service in Ireland. He said that persons with organic mental conditions tried to hide it and will not answer your questions. So the fact that the patient in this instance did not answer the questions raised queries in his mind as to why this was so. He learned later from the nurses that there were times when the patient appeared to talk to a third party. The nurses were not sure whether this was a psychotic thing, or whether she just did this when she did not want to talk to them. It was clear that this had been going on for some time. The picture was not consistent with what are sometimes called functional psychiatric disorders such as, schizophrenic disorder or persistent paranoid disorders which are differentiated from schizophrenic disorders. On balance therefore, he did not feel that she was demented. He was concerned, however, that she might possibly be delirious. He explained that in delirium, which is the old name, it is now called confusional disorder, your awareness of your surroundings varies and the symptoms vary. They can come and go and wax and wane. He felt that delirium was quite a strong possibility in this case, but he is not certain that it is there. He also had regard to alternative possibilities and in particular – was she feigning? Had she reason for feigning? In this context he stated that he was not aware at the time that she is the subject of a deportation order, and only picked that up from listening to Dr. O’Connor’s evidence. He explained that as a psychotherapist he has been trained to regard everything that people do as communication. So, he was looking at her behaviour and the things that she was saying to him very closely. On the one hand there was clear evidence that she wanted to get out of the place, but on the other hand there seemed to be evidence that she wanted to stay in it. He said you could hypothesise that she was actually creating a situation to ensure that she would be kept in hospital and he asked himself, would she have a reason for that? He continued “I felt, well, if she thought she was dying and, having incurable illnesses, two very serious illnesses, that she had not much hope, that maybe she decided that she was going to be looked after. That could create a situation. That was one possibility”. He referred to the Diagnostic and Statistical Manual of the American Psychiatric Association Version 4 (otherwise DSM 4), which differentiates malingering from a fictitious disorder. He stated that “in both cases people feign mental or physical illness, but in malingering it is done like, to get a passport, or to get civil damages or to get into hospital or something, whereas fictitious disorder is feigning it so that you can [adopt] the sick role, and be looked after”. In any case he had these two possibilities in mind, namely that she was on the one hand possibly delirious and on the other hand possibly feigning and he then observed her to be talking very very quickly. People who are delirious or confused sometimes do this. At this point he was of the view there was a strong possibility that she was delirious. He also considered the possibility that she was suffering from a degree of sensory depravation by virtue of her isolation and the fact that the only contact she had was with people who were masked and gowned. Such sensory deprivation can cause people to become psychotic. He bore this in mind as another possibility. He said that although she talked freely about what she claimed had happened to her (the allegations concerning Dr. O’Connor etc), and her mother being present witnessing it and all the rest, she would stop talking whenever he attempted to steer the conversation onto the topic of her treatment. He also said that he asked her did she want to go to court and get out of the hospital, and he got a very vague answer from her. He said “She sort of said she wanted to get out there, but she did not want to go to court”. It was a very vague kind of answer which implied to him that she was ambivalent, and that she had reasons for wanting to stay in the Mercy as well as for wanting to get out of the Mercy. Dr. Dunne felt she was very disheartened about her illnesses, because he asked her several times why she did not take the treatment, and on occasion she did say that she had seen other people get better. He had the impression that she felt that she was kind of a hopeless case and was in despair.

Dr. Dunne stated that he was very conscious about personality and cultural issues. He had experience of working with people from different cultures in the UK and realised the importance of appreciating their different backgrounds. Nevertheless, he remained of the view that there is a strong possibility that she was delirious or had a confusion state at the time that he saw her. He reiterated that he based this view not just on the nature of the statement or allegations that have been made, but also on the fact that the patient had been avoiding his questions which were directed at establishing her orientation in time. He said that people with organic brain damage sometimes tried to cover up the fact that they don’t have reasonable information. They would be aware that they don’t have it. They hide it. This is more so with dementias. People with dementias tried to cover up their bad memory by changing the conversation. But if you ask them what day it is. They don’t want to answer. It indicates a certain defensiveness, that they don’t want their lack of ability or their incapacity to be spotted by whoever is trying to examine them. He stated it was quite striking how the patient changed the conversation any time he got onto the subject of orientation, even in an informal way. He said this in itself means nothing but added to the extraordinary statements that she had made, it made him think that she could be a bit out of touch and delirious. There was then the third feature of the manner of her speech. He stated that she started to talk so quickly as to become incoherent, and then she would talk in her own language, though sometimes that was to the mother, but some of it, he thought, was also directed at him. He said that when he is talking about fast talk, he is talking about incredibly quick talk, which was quite different from the way that she spoke most of the time. Certainly, she was under great emotional stress. He felt that the overall presentation fits with the delirium theory, where a person can be out of touch for a short period of time and then come back in touch. Dr. Dunne said that he spent approximately an hour with the patient. He then went to his office and dictated his report there. His bottom line is that he considers that there is a high possibility, but he would not go so far as to say a probability, that that patient is delirious. Asked if he was diagnosing her as delirious, he said that he was fairly close to it but he would like to have more information. The correct way of putting it was that he was very suspicious that she is suffering from delirium, but he was not definite. Dr. Dunne was then asked to comment on her capacity to make rational decisions, and to seek a vindication of her rights. Dr. Dunne’s opinion was that in the state she was in when he saw her, no matter what its cause, she would not have been capable of giving instructions to anybody. She was not in a rational state. Dr. Dunne was asked about what he knew concerning her previous psychiatric history. His previous knowledge was based upon what was contained in Dr. O’Connor’s report on foot of which the decision to detain her was based, and also on the evidence that he had heard given by previous witnesses. He said that Dr. O’Connor’s report had set out a history of suicidal ideation, that she was unable to cope at home and that she had expressed thoughts of extreme depression. Further, it was stated that her behaviour had become more inappropriate and she had become more depressed and upset. He was now aware from the evidence that she had not been taking any medication at all, including anti-depressant medication, since in or about the time of her admission. He did not think the issue of whether or not she took her anti depressants was very important. The more important question was whether the depression could have interfered with her decision making abilities. He said that depression can, in some people affect their judgments. In other cases it does not. He said that a lot of depressed people become indecisive, and they also tend to have a gloomy outlook. However, he was in agreement with Dr. Cooney, that the type of depression he was speaking about was very different from psychotic depression, where the depression is so severe that the patient is totally out of touch with reality. He was not speaking about that. He did feel that the more usual kind of depression could affect her capacity to make decisions and to make judgments. He said you would have to sit down and look at it and look at what was being decided upon. Different people could be affected in different ways. Depression might affect their capacity to take certain kinds of decisions and not others. He concluded “it’s not something you could be too clear [on], and certainly it is not something I would hazard an opinion on”. Dr. Dunne stated that before he entered the patient’s room, he was expecting to have difficulty with the patient on account of the fact that she had been isolated for nearly a year. Asked whether the isolation regime might have affected or worn down her capacity to act for herself, he stated “there would be two elements to it, not just the isolation but the fact that she was looked after”. He then endeavoured to explain what he meant. He says that if you don’t use a muscle it becomes atrophied. Similarly, if you become unused to taking decisions and get into a dependent or sick role, then it becomes more difficult to take decisions when that is required. He was asked if the fact that she had on a previous occasion barricaded herself into the bathroom, having dragged in her mattress to sleep on it, and would only communicate through a crack in the door, gave him cause for concern. He said he would be concerned. He had had people do that. Some people would do it just because they are angry, and some would do it maybe to get attention, and yet others would do it because they were paranoid. He said it was important to try and work out the explanation. He was asked if the patient gave him any explanation as to why she was not taking her medication and refusing to submit to tests. He said “Yes, she did. She said that she had had it and it hadn’t done her any good. She was angry, and she said she was angry about it.” He said that he tried to ascertain if there was a despair element to her presentation. It was implicit in what she was saying that she did not see a future, and he stated that anger can be a cover up for despair or depression. He was asked by the Bench if one can have a level of despair which so debilitates you that you cannot function in the normal way and, if so, does that come within the parameters of any known syndrome or mental illness. He said that normally this comes under what are known as depressive disorders. If you look at the early stages of those states, they are often seen to be proceeded by anger. He felt that her anger could be due to that. It could also be due to just frustration, partly in being locked up, but also frustration at the fact that the treatments were not working as they had for her friends. He felt it was clear from the evidence of Dr. O’Connor that she had a kind of suspicious attitude all along. He agreed with Dr. O’Connor’s characterisation of it as a persecution complex. So he felt her anger could have been due to frustration. On the other hand, she could be in fear and her anger could act as a protection against admitting to herself as to what a grim situation she was in. He said she was even angry about the possibility of having AIDS and she said to him “I couldn’t have AIDS”. Dr. Dunne was of the view that there was little prospect of anybody getting through to the patient. He referred to the fact that Dr. O’Connor had said that very many people had spoken to her, including the chaplain, but that nobody had succeeded in persuading her. In his view it would have to be somebody who she would see in a special way. Even though she has regard for her mother, and her mother has a high regard for her and is very concerned for her, she won’t listen to her mother. Dr. Dunne’s view was that if you are to have influence with people, you have to be something in their eyes, and he was unaware of anybody who had the necessary degree of influence with the patient, that is, somebody by whom she would be guided or be prepared to listen to. He felt it was very undesirable from the point of view for her mental health, that she should remain in long term isolation, especially if she wants to get out. But, he added, “At the moment I don’t know what the hell anyone can do. It’s an impossible situation, and I have sympathy with everybody in it.” Dr. Dunne felt that the only way that she wouldn’t be in danger of developing a serious psychiatric illness in the future is if she herself feels she is dying and that she wants to be there because she is being cared for. He acknowledged that it is possible that that is what the patient is at but considers that his other theory, namely that she is suffering from delirium, represents a stronger possibility. That concluded Dr. Dunne’s evidence in chief. He was then cross examined by counsel for the first named respondent.

Dr. Dunne confirmed that the circumstances in which he saw the patient were not particularly conducive to a full and comprehensive psychiatric assessment. He felt a gown, a mask and goggles was not helpful. Nevertheless he was able to make conduct with her and was amazed at how friendly she was when they were chatting about ordinary things. They spoke about the weather and ordinary things. She wasn’t totally out of touch. She had a television. He was making friendly conversation with her, trying to get her at her ease and they were fine until she starting talking about what he characterised as “this rape business”. Asked about the level of her intelligence, he said that he didn’t think that she was stupid or that she had an intellectual disability. He suspected her level of literacy might be low. He confirmed that she had no difficulty in engaging with him using English. He said that when he tried to explain to her about this court case, and that if she really wanted to get out of the hospital she should get involved in it, she didn’t seem to take in what he was saying. That made him think that either she didn’t want to get involved, or, more likely, that she didn’t understand. Dr. Dunne said that she didn’t want to discuss the basis upon which she was in hospital. When he attempted to discuss that subject she would get angry and she would turn away and say she didn’t want to talk about those things. She would then start to talk at great speed and he didn’t know what she was on about. Dr. Dunne was asked if he was of view that the patient understood the information that had been imparted to her but was just refusing to accept it. He said that she was refusing to accept that she has AIDS. She understood that she had been told that she had AIDS. She also understood the diagnosis of TB. Dr. Dunne agreed that she knew the ramifications of it of it, the effect it might have on her health and how it might affect other people. However, he stated that she didn’t seem to understand why it was that the treatment hadn’t worked and why she should go on with it. He also said that what she didn’t seem to understand was the legal side of it. As far as her AIDS was concerned he stated “I suddenly realised that it was a pure denial, her rejection of this, and a very angry rejection.” Pressed in respect of the matter, he confirmed that she knew that she had been diagnosed with AIDS, however, she was saying very angrily “I don’t have it”. Dr. Dunne acknowledged that he would have liked to be able to observe the patient over a period of a few months, to have chatted with her, to have talked regularly to the nurses, to the ward cleaner and to all of the people who had contact with her on her on-going basis, in order to form a better picture. It was put to Dr. Dunne that while Dr. Cooney had expressed a similar desire to have more involvement with the patient, he did not share Dr. Dunne’s views about her. Dr. Dunne said, “I know, and I want to make it plain… that other views are as good as mine at the present time. I would regard them as that. Even though I am stressing my opinion fairly strongly, I am recognising that you can make arguments against it which are equally strong.” He thought it was clear from Dr. Cooney’s testimony and the report that he had made to Dr. O’Connor, that when he saw the patient in December, 2007 he didn’t see her in the same state that she was in when he (Dr. Dunne) saw her. In that regard he thought it was of significance that Dr. O’Connor was of the view that she was fit to take decisions in November or December, 2007 but that he now had doubts about her fitness to do so. Dr. Dunne said “you could make different interpretations of the state she was in when I saw her and I considered all the interpretations. In the end I decided that probably at this stage, for a variety of reasons, but most of all the chronic sickness, and the severe sickness, and the fact that they are infectious types, she is probably subject to come and go, changes in the level of her awareness, and the hallucinatory experience does occur in the confusing states”. He added “The problem is… there isn’t enough information to be too definite about it”. It was suggested to Dr. Dunne that if the patient was delusional the extent of her delusions was unclear as well. Dr. Dunne responded “If she was acting out and making up the story that she gave me, she is a very good actress because she was carried away by it and she seemed to believe. But the other thing was… she talked so quickly as to become incoherent and then relapsed into her own language and then she was defensive. I thought she was defensive anyway. About my exploring her orientation in time.” …. “All of that would fit with her try to cover an organic state which is interfering with her abilities”. He also attached significance to the fact that others observed changes from time to time. Her mother’s accounts and the nurse’s accounts were very clear and they were remarkably similar. She was grand most of the time and fully in touch with you and then she would be talking away to somebody who wasn’t there. Everyone was asking the same question “was this real or not?” Nobody has ever answered it, but it would fit in with a delirium.

Dr. Dunne was then cross-examined by counsel for the second named respondent. It was suggested to him that the kind of defensive behaviour he was speaking of occurred in the case of people who had organic brain damage which didn’t seem to be the case here. Dr. Dunne stated that you can have your brain misfunctioning due to an acute infection, without having dementia. He further stated that people with AIDS can have their mental functioning distorted in many ways. He was asked if he would accept that if the patient wasn’t feeling picked on before, she might very well be feeling picked on now and be defensive as a result. He replied “I would accept that at the beginning, and that she has been consistent in refusing treatment and that she knew what she was doing when she refused it at the beginning, or appeared to. Whether she was fully rational then or not is another matter. But she wasn’t subject to a psychiatric disorder. But I think that there is a possibility that she has developed a psychiatric disorder. That is what I am saying.” Dr. Dunne was asked about the patient’s anger. He acknowledged that it is fair to say that the lady is very angry. He added that he had also said that anger can actually, although it is a part admission, be a sort of defence mechanism against despair and depression. It was put to him that anger is a standard reaction to any loss and that in and of itself it was not unusual. He agreed that it was not unusual. He added that “In itself it isn’t necessarily pathological and it isn’t in a lot of people. There are occasions when it becomes pathological.” Referring specifically to the patient’s anger he stated “Now, the problem that I see with this lady is that — I mean, there is the personality factor. If there’s also a confusion factor, which I think there is,… it’s going to make it very difficult for her to be helped, and I don’t at the moment –see a way to help her to cope, some kind of programme that would resolve the situation.” He agreed that the patient has an awful lot to accept and he commented that the people who are in that state can be very irrational. He was asked to comment on the fact the patient is subject to a deportation order, and the fact that she was very definite in stating to Dr. Dunne that she didn’t want to go back to South Africa. He stated that that “ …would be a reason for staying in the Mercy, and would be a reason for feigning. She could also be feigning because she feels she is going to die, and it is creating a situation where she has to be kept in, this and all of the rest. But I don’t think she is. I think the odds are against that.” When asked if the patient understood the nature of having full blown AIDS and the nature of having TB and what that would mean, Dr. Dunne confirmed that she does understand that. However, he added “when a person is confused, it doesn’t necessarily mean that they don’t understand, that they are totally confused about everything, or totally out of touch with everything; they are not.” Dr. Dunne was asked if the plaintiff’s presentation could be explained by a very very angry, very frustrated stubborn person who is afraid and simply doesn’t want to face up to the consequences of what her fate appeared to be. He agreed that this was a possible explanation “to a degree; only what I saw in that room didn’t quite fit with that”. He elaborated that he discerned an element of lack of understanding, which was not just there because the patient was in a highly emotional state. He said he was offering that view not just as a psychiatrist, but as someone who had practiced psychotherapy. The patient “struck me more like somebody who was on the organic side, on the confusional side, on the purely emotional side.” He explained that because emotion comes into confusional states; not alone do people with confusion get more emotional but stress from emotional distress can increase someone’s capacity to become confused, or to get into confusion from time to time. He was asked whether it would be completely unheard of for somebody speaking in their second language, who was under great emotional stress and in difficulty, to revert to their native language. Dr. Dunne answered in the negative. That concluded his testimony.
Further evidence of Dr. Cooney
Dr. Cooney had remained throughout Dr. Dunne’s testimony. The court, taking the view that what it was engaged upon was the conduct of an inquiry rather than the hearing of an adversarial cause, indicated that it would be grateful to receive all possible assistance on the difficult question of the patient’s mental state. In the circumstances the court enquired of Dr. Cooney if he wished to add anything in the light of what Dr. Dunne had had to say. Dr. Cooney offered some additional remarks and in the course of doing so stated that he had hoped that Dr. Dunne might be able to give a slightly more holistic view of her situation. He added: “I think we have to see her in the light of holistically where she is coming from, and her dealings with the Irish Courts so far, giving a very biased view. The Irish Courts are sending her back to South Africa. The Irish Courts have taken her children off her and the Irish Courts have locked her up in a hospital, so I am not sure, if you were coming from that background, that when you are given an opportunity to come to court to fight your case, you would necessarily be jumping up to take it”. He also expressed the view that it might have been to her advantage to keep quite about her past treatment for tuberculosis and HIV and to deny that “because if she is coming to Ireland and saying ‘I have got AIDS and I have TB, a type of highly resistant TB’ that is going to make her a lot more likely, she may well feel, to be deported. Promptly, as well.”. Dr. Cooney felt that these aspects of her background had not been adequately taken into account. He also stated that he didn’t think that it was fair to say that she had been in isolation. There had been hundreds of people in to see her. It was not like she is inside a white walled cell. She had lots of incursions, admittedly brief, into the room. He agreed that persons visiting her in a room were unfortunately gowned and goggled. However, she had visits from her children and from social workers in her hospital room. She had children’s drawings which he presumed were by her own children, pinned up on the wall and around her bed. She had some of the comforts of home. While her situation was far from ideal, she was not in the same in the situation as a lone yachtsman going around the world; she was not subjected to that level of deprivation. His sense was that cultural differences were possibly a significant factor. He said he would pose the question, is it a common way of dealing with problems where she comes from to attack and make to allegations against the person confronting you, as way of taking a lot of their creditability away. That might well be a cultural thing. He said “I think, in a situation where you talk to a strange psychiatrist, who has come in as part of a legal process, and I presume about whom you would be highly suspicious, to deal with that person with your mother present, by breaking into your mother tongue, may well be along the lines of saying ‘What the hell is he doing here?’ or ‘He has got to get out of here’ or, she may well have been saying things about Dr. Dunne. I would be much more concerned if she was talking with Dr. Dunne in private and started breaking into her mother tongue”. Dr. Cooney stated that he never experienced her using any other language. Dr. Cooney felt that Dr. Dunne had also failed to take into account how physically well the patient is in fact at the present time. She is well nourished, has a good appetite, and is caring for herself quite well. There was no bad body odour or anything like that from her. That is not typical of a person suffering from depression. It is more typical of somebody who has given up. There were none of those sort of markers. He did not think that Dr. Dunne’s theory of the patient suffering intermittent or transient episodes of delirium was likely. That concluded Dr. Cooney’s further evidence.
Further evidence of Dr. Dunne
Dr. Dunne was in turn given an opportunity to reply briefly to Dr. Cooney’s additional remarks. His only additional comment was that although there was a clear disagreement between himself and Dr. Cooney the disagreement between them was not quite as big as it looked. He accepted that intermittent episodes of delirium would be very unusual. Notwithstanding that it was very unusual, he remained of the view that it was a distinct possibility in this particular case.
The evidence of Dr. Margaret O’Sullivan
The next witness was Dr. Margaret O’Sullivan who was examined in chief by counsel for the second named respondent. She stated that she is a registered medical practitioner and that she qualified in 1982. She is a specialist in public health medicine with the Department of Public Health in Cork, employed by the HSE. She produced the original “Section 38 Order” relating to the patient, namely the order dated the 10th December, 2007. She was asked to explain her part in the invocation of s. 38 against the patient. She stated that she works in the area of health protection. In the course of her work she is involved in the surveillance, prevention and control of infectious disease, including TB. The patient’s case was notified to her in October of 2006 and, as with all cases of TB, her contacts were traced, tested, treated where necessary, and followed up appropriately. Dr. O’Sullivan stated that in this particular case Dr. Terry O’Connor, Consultant Respiratory Physician, had requested their assistance at an early stage in managing the patient by means of directly observed therapy, as his team were having difficulty in getting her to comply with her medication regime. According to Dr. O’Sullivan that persisted for quite a period and there were increasing difficulties with the patient which culminated in her refusal to co-operate with any treatment. Dr. O’Sullivan stated that it had reached the stage in December of 2007 where Dr. O’Connor had felt it necessary to contact the Department of Public Health to express a high level of concern with the position then obtaining, and to say that he felt that s. 38 needed to be invoked. Dr. O’Sullivan said that her department then consulted their legal advisors who advised them as to what needed to be done. Specifically they were advised that Dr. O’Connor needed to stipulate certain facts with regard to the patient in a formal communication to them. Dr. O’Sullivan acknowledged that the formal order was prepared by Dr. Elizabeth Keane, the Medical Officer of Health, whom she knows and works with. The s. 38 order was produced and identified by Dr. O’Sullivan who confirmed that she was the co-signatory on the document. It was signed on the 11th December, 2007. The judge asked the witness why it was that the s. 38 order merely named the patient but did not state any address for her. Dr. O’Sullivan could not say, beyond stating that the patient was the only case of that name that her department had had notified to them as a case of TB. Moreover she was aware of the patient’s medical circumstances from a report sent to her by Dr. O’Connor her treating physician. She had that report at the time that she signed the order. She was asked what happened to the order after it was signed, She replied that it was sent to the Minister for Health. It was both faxed and posted to the Minister for Health, and it was also sent to various personnel in the HSE and specifically, Professor Brendan Drumm, Chief Executive Officer; Dr. Jim Kiely Chief Medical Officer and Dr. Pat Doorley Director of Population Health. The witness stated that she did not fax the document personally, but she was present in the office when it was faxed by a member of the secretarial staff. A telephone call was made afterwards to make sure that it was received. Dr. O’Sullivan stated that the patient was not in hospital when the order was made. She confirmed that the patient had to be detained by a member of An Garda Síochána. She was asked how the order was notified to her and how it was executed. She stated that the patient was discovered to be in Middleton, and both she (Dr. O’Sullivan) and the senior medical officer who had been involved with the patient’s directly observed therapy (a Dr. Dillon), travelled to Middleton to see her. The patient was given the written order and it was also explained to her. She was then brought to the Mercy University Hospital by An Garda Síochána. Dr. O’Sullivan stated that she had no indication that the patient was not literate but she cannot confirm the position one way or the other. She stated that Dr. Dillon explained to the patient what the document contained and that she had the right to appeal. When asked what regime was put in place with a view to safeguarding the patient’s rights once she had been brought to the hospital, Dr. O’Sullivan stated she was in very close communication with social workers all of the time and we were informed that she was repeatedly advised about her right to appeal. When asked if any regime was put in place to review the patient’s case periodically, not just with respect to her respiratory problems, but also with respect to her mental health and all of that, so as to obtain a holistic view of her situation, Dr. O’Sullivan replied that the patient was under Dr. O’Connor’s care. The witness stated that she and her colleagues were very concerned when they heard that the patient was refusing to take treatment. They wrote to Professor Drumm, Dr. Kiely and Dr. Doorley once again, setting out their concerns about the gravity of the situation, about the fact that the legislation contained no provisions for review of a case, and about the fact that the patient was going to be indefinitely detained for so long as she refused treatment. The witness confirmed that the reality of the position is that the patient is going to die in the Mercy University Hospital unless she consents to treatment. Dr. O’Sullivan confirmed that Dr. Dillon is a senior medical officer with the Department of Public Health and that she works mainly in the TB contact tracing service.

Dr. O’Sullivan was cross examined by counsel for the applicant. She was asked to produce the letter that she had referred to in her evidence in chief, namely the letter addressed to Professor Drumm, Dr. Kiely and Dr. Doorley expressing the concerns of herself and her colleagues. She did so. It is a letter dated the 18th January, 2008, and it is in the following terms:

“RE – TB case, detention and isolation Order: Health Act 1947, – section 38 [patient Ms. N.I.]
Dear Professor Drumm,

We wish to bring to your attention that an order was made on the 11th December, 2007, in accordance with the above Act, for the detention and isolation of the above named patient in a specialised negative pressure room at Mercy University Hospital (MUH). This followed a request for the order and the furnishing of information from Dr. Terry O’Connor, Consultant Respiratory Physician, MUH.

 

The patient has been a patient of Dr. O’Connor since October, 2006 when she was diagnosed with smear positive cavitatory pulmonary TB. She had been on directly observed therapy in the community with which there were major difficulties. Since the end of November, 2007 she has refused all treatment. Legal advice was obtained prior to proceeding with the order.

The order was on the basis that the patient
• Is a probable source of infection (multi – drug resistant pulmonary TB case; not compliant with treatment)

• Her isolation is necessary as a safeguard against the spread of infection and

• She cannot be effectively isolated in her home.

This patient continues to refuse all anti – tuberculous treatment. She was given a copy of the order at the time. She has been advised of her right to appeal. It is our understanding that the order holds until the case can be certified as no longer being a source of infection. No appeal has been taken as yet.

To our knowledge, few such orders have been made previously in Ireland. However, what really needs to be highlighted is that there would appear to be no precedent for such a case to refuse all treatment of their condition. The situation therefore presents extremely challenging ramifications because of a potentially indefinite time frame of detention and isolation.

While this order is addressing the potential dangers to the general public, it clearly has major implications for the place of detention i.e. MUH and the staff at that hospital. It is particularly tragic on humane grounds.
We are highlighting the above to you in view of the gravity, complexity and unprecedented nature of the situation. In addition, it is probably right to urge that the content and application of this Act be reviewed, giving its obvious shortcomings when refusal of treatment is an issue.

 

Yours sincerely

Dr. Elizabeth Keane, Director of Public Health
Dr. Margaret B. O’Sullivan, Consultant in Public Health Medicine

c.c. Dr. Terry O’Connor, Consultant Respiratory Physician, Mercy University Hospital, Cork
Mr. Pat Madden, Chief Executive, Mercy University Hospital, Cork

Mr. Gerry O’Dwyer, Hospital Network Manager, Aras Slainte, Wilton Road, Cork

Dr. Kevin Kelleher, Assistant National Director of Population Health – Health Protection, Health Service Executive, 31 Cassons Street, Limerick.”

Dr. O’Sullivan testified that no written response was received to that letter. There were apparently verbal communications between officials of the Department of Health, and officials of the Health Service Executive, centering on the need to obtain legal advice and the need for guidance generally. Dr. O’Sullivan was asked if the issue of assessing the patient’s mental capacity or her ability to act on her own behalf ever came up. She stated “we asked that repeatedly, and what we were being told was that she was fit.” Dr. O’Sullivan was asked the following questions by the judge. “Was there any arrangement put in place that some person would act as an advocate on her behalf, you know, to, I suppose, negotiate with the Mercy Hospital who are detaining her, issues relating to her welfare, to her rights, to her entitlement to appeal, to accessing things like legal advice? I mean, as I understand it, she is of limited financial means. She is a foreign national, there are huge cultural problems. There is a language problem. There is a literacy problem. There is an asylum dimension to this thing. She apparently is the subject of a deportation order. She faces multiple multiple adversities, and therefore one would think that if this very draconian power is being implemented that some regime would be put in place to provide minimum safe guards for her rights. Was anything done in that regard?” Dr. O’Sullivan replied “Dr. Dillon…certainly visited her…a couple to times early on in the period, and there were a number of meetings in the hospital as well. I was not at any of those”. She went on to state that she understood that the chaplaincy was actively involved with the patient. She was unable to say whether that was occurring in a structured way or whether it was ad hoc. She was asked who had responsibility for overseeing the case, and she said it was herself and Dr. Keane. Dr. Keane was the Chief Medical Officer in the terminology of the Act, and the main signatory to the order. She was the co-signatory. She was asked by the judge who on an ongoing basis was responsible for ensuring the welfare of the patient and vindicating her rights. The witness stated that she did not know. When pressed, she stated that the patient was under the care of the respiratory physician in the hospital and she had social workers working with her. She also had the chaplaincy service and numerous other allied health workers. However, the public health department’s role was concerned primarily with the public interest. With regard the patient’s welfare and rights she said there “were ongoing meetings in Mercy University Hospital” convened by Dr. Terry O’Connor. She was not at any of those meetings. When asked if anybody had considered the possibility of seeing if the patient could be taken into wardship she replied “not by us”. Dr. O’Sullivan was unable to say who physically handed the order to the patient. She presumed it was the guards, but it might have been Dr. Dillon. She was certainly aware that Dr. Dillon spoke with the patient. That concluded Dr. O’Sullivan’s evidence.

On the 30th of October, 2008 the court heard evidence from Dr. Elizabeth Keane, Dr. Anna Dillon, Ms. Marie Buckley and Mr. Colman Rutherford.
The evidence of Dr. Elizabeth Keane
Dr. Keane stated that she is a consultant in public health medicine. She was appointed Director of Public Health to the Southern Health Board region in 1995 and following the changeover to the HSE in 2004 she became Director of Public Health for HSE South. As part of her job she acts as Medical Officer of Health for the counties of Cork and Kerry which counties comprise the functional area of HSE South. Dr. Keane stated that she has a letter of appointment specifying that she has been appointed to act as a Medical Officer of Health. She was asked if the letter designates her in writing to perform the functions of a chief medical officer for the purposes of the Health Acts, 1947 to 1953. She stated that she didn’t know that. The court then stated that it would require proof of such designation and counsel for the first named respondent undertook to provide such proof in due course. Subsequently counsel handed into Court a document on HSE letterhead entitled “Delegation Order”, dated 1st June 2007, and under the signature of Dr. Patrick Doorley, National Director of Population Health. This document purports inter alia to “ …sub-delegate to Dr. Elizabeth Keane all functions related to … the Chief Medical Officer of Health (as set out in the Health Acts 1947-2005 or any other legislation or regulations made thereafter, as amended, restated, revoked or replaced from time to time) for the HSE South region, i.e. Counties of Cork & Kerry.”

Dr. Keane stated that she had been made aware of the patient’s case by Dr. Sullivan and by Dr. Dillon. She had been briefed on the difficulties that had been encountered in getting the patient to comply with her medication regime. She herself became involved with the case in December of 2007. She received Dr. O’Connor’s report of the 10th December, 2007, which was an up-dated version of a somewhat similar letter dated 5th December, 2007 that she had also received from him. The letter of the 5th of December 2007 had had to be up-dated to take account of changed circumstances. She discussed Dr. O’Connor’s letter of 10th December, 2007 with him in the course of a tele-conference and also took advice from the HSE’s legal advisors. As a result of all of this she became satisfied that the patient was a probable source of infection, that she had an infectious disease which was one of those that were listed in the Schedule of Infectious Diseases, that her isolation was necessary because of the risk of spread of the disease, and that the patient couldn’t be isolated in her own home. It was Dr. O’Connor’s specific advice that the most appropriate place for her was in the Mercy University Hospital because they had a negatively pressurized room. Dr. Keane stated she had never previously been involved in a s. 38 case. They were very very rare. Her department obtained legal advice because they were very aware of the gravity of the situation and the invoking of s. 38 was considered to be a measure of last resort. She was aware that in the past and in other cases certain of her colleagues had threatened to invoke the section and this had resulted in the patients concerned complying with what was required of them so that an order was never actually made. She had initially hoped that that might happen in this case too. The s. 38 order was produced to her and she identified her signature on the order. She stated that the order was based on the report that she had received from Dr. O’Connor. This was appropriate because he is a respiratory physician and he was the patient’s consultant. She was asked why there was no address for the patient set forth on the face of the order. She explained that the reason for this was that the patient had absconded from hospital at the time that the order was made and they did not have an address for her. She was tracked down through her social worker and with the assistance of the Gardaí. There was an accompanying letter of notification addressed to the patient at Great William O’Brien Street, Blackpool, Cork, her last known address. As to her whereabouts for service of the order, they were provided with an address through the Gardaí in Middleton. Dr. Dillon went with the Gardaí to Middleton for the purpose of executing the order. When the order was served on the patient she was not given Dr. O’Connor’s letter of the 10th of December, 2007. She was only served with the single page constituting the s. 38 order itself, and the letter of notification dated 11th December, 2007. The letter of notification was in terms:-

“Dear Ms. I.,

Information has been furnished to me by a registered medical practitioner, following an inspection by him/her that:-
i you are a probable source of infection with an infectious disease, respiratory tuberculosis (TB),
ii that your isolation is necessary as a safeguard against the spread of infection,

iii that you cannot be effectively isolated in your home.

Consequent on this information, I have made an order that you be detained and isolated in the Mercy University Hospital in Cork until such time as I certify that you are no longer a probable source of infection.

As required by subs. (2) (c) (ii) of the above provision –
(a) I enclose a copy of the order herewith and
(b) I give you this statement in writing that you may at any time appeal to the Minister for Health in writing to direct your release.

Yours sincerely,

Dr. Elizabeth Keane,
Medical Officer of Health.”

Dr. Keane was aware that both the order and the letter were handed to the patient by Dr. Dillon but she was not personally present when this was done. She has not any contact with the patient since she was detained in the Mercy University Hospital but Dr. O’Connor has.
Dr. Keane was cross-examined by counsel on behalf of the applicant. She confirmed that Dr. O’Connor wrote to her on the 5th December, 2007 about the patient because at that time the patient was threatening to take her own discharge. That letter was overtaken by events when the patient actually discharged herself and Dr. O’Connor had to write an amended letter of the 10th December, 2007. It was Dr. Keane’s understanding that Dr. Dillon explained to the patient about the statutory appeal mechanism when she delivered the letter of notification to her. The only information that she personally gave to the patient was that contained in the letter of notification. That letter was written on the basis of advice given to her by the HSE’s legal advisors. She had asked Dr. Dillon to execute the order because she herself had never met the patient, whereas Dr. Dillon had a relationship with the patient. She thought it would be better for the patient to see a familiar face. She did not authorise Dr. Dillon in writing to go and detain the patient. She understood that the Gardaí were going to detain the patient and that Dr. Dillon was going to hand the order to the patient. She was asked if she authorised the Gardaí in writing to detain the patient. She replied that they had a copy of the order. She stated that the patient was served personally on the advice of the HSE’s legal advisors. Both the order and the letter were read to her by Dr. Dillon just in case she was unable to read. She said Dr. Dillon was very familiar with the case. She did not give Dr. Dillon any instructions in writing. She was asked by the judge if she gave Dr. Dillon authorisation in writing pursuant to s. 38 (2)(b) of the Health Act, 1947 and she said no. Further, she was unaware if Dr. Dillon was assigned by or with the consent of the Minister to perform the duty of acting under s. 38. The patient went with Dr. Dillon and the Gardaí to the Mercy University Hospital, which is the place of detention specified in the order. Dr. Keane was asked: “After she had been committed on foot of your order, did you put any regime in place to ensure that she had somebody to act as an advocate on her behalf, to assist her in the event that she wanted to make appeal? Did you put in place any system for continuingly reviewing her situation?” …… “As the committing officer, did you take any steps to ensure that, on an on-going basis, her rights would be vindicated?” Dr. Keane stated: “Yes, we understood from Dr. O’Connor that the patient had access to free legal aid and was encouraged to seek their advice. She was under the care of Dr. O’Connor while she was in the Mercy.” Dr. Keane was asked how frequently she reviewed the patient’s case and how she stayed in touch with the case. She stated “we would have got regular reports from Dr. O’Connor and from the Mercy, and particularly in January when she had been detained for a period of three or four weeks at that stage, we were very concerned…”. The reason they were so concerned was that the patient was still refusing to comply with testing or treatment. She stated that they wrote their concern to the Minister and others. That concluded Dr. Keane’s evidence.
The evidence of Dr. Annette Dillon
The next witness was Dr. Annette Dillon. She was examined in chief by counsel for the first named respondent and stated that she is a senior medical officer in the HSE Service, working particularly in the area of infectious diseases. She is involved in tracing the contacts of tuberculosis patients. She first met the patient in October, 2006. She was a contact of a case at that time, and Dr. Dillon referred the patient to Dr. Terry O’Connor in the Mercy University Hospital. She was initially treated in hospital for a number of months, and then she was allowed home. Dr. Dillon said they put in a programme of directly observed therapy in the patient’s home and she was supported by public health nursing, social workers and home helps. Her GP was also quite involved. They had regular meetings about her progress. She was in and out of the Mercy University Hospital on a number of occasions. At the end of November, 2007 the patient’s GP and Dr. Dillon’s team noticed that she was not coping that well. Further, she was not complying with the directly observed therapy. On some days the nurses would call and she would not be there. She was also finding it hard to cope with her children. The patient went into hospital voluntarily in mid November of 2007 under Dr. Terry O’Connor. At the end of November, 2007, she refused further treatment. Dr. Dillon called to see her in the hospital at that time, and also discussed the case with Dr. O’Connor. They were very concerned about the patient’s condition. Then, at the beginning of December, the patient stated that she wanted to leave hospital. This was a cause of very grave concern from a public health point of view as MDR TB can be very infectious. Dr. Dillon’s evidence was that she reported to Dr. Keane. She and Dr. Keane discussed the case in the days leading up to the 11th December. They began to contemplate the making of an order under s. 38 but it was the last thing they wanted to do if it could be avoided. Dr. Dillon learned on the morning of the 11th of December, 2007, that the patient had discharged herself at 7.00pm on the previous evening. She then had a discussion with Dr. Keane, Dr. O’Sullivan and the social workers involved in the case. She subsequently went from her clinic to the Department of Public Health and met there with Dr. O’Sullivan and Dr. Keane. They discussed certain legal advice that had been received and Dr. Dillon was then given a document, namely the s. 38 order that had been executed by Dr. Keane and co-signed by Dr. O’Sullivan. She was also given the notification letter. She was told that both the order and the letter had to be given to the patient. They were initially uncertain as to the patient’s whereabouts. However, Dr. Dillon was aware that that patient had a South African friend and, after making certain inquiries, she ascertained that the patient was staying with her friend in Middleton. She, and her colleague Dr. O’Sullivan, contacted the Gardaí at Middleton and requested their assistance in executing the order. They then travelled to Middleton Garda Station and went through the order with members of An Garda Síochána there. Dr. Dillon and Dr. O’Sullivan then went to an apartment in Middleton accompanied by two Gardaí. The patient was not there when they arrived and so they returned to Cork. Later that evening Dr. Dillon received a call to say that the patient had been located in Baylink Road, Middleton. Dr. Dillon went directly to that address and rendezvoused with three members of An Garda Síochána. Dr. Dillon went into the building accompanied by a female Garda and spoke to the patient. She told the patient that she needed to come back into hospital and have her medication, both in her own interest and in the interests of others. The patient was told that she had pulmonary TB and that it could be passed onto others. She was also told that, as the lady with whom she was staying had a small baby, she could be placing that baby in danger. The patient’s initial reaction was that she wanted to stay where she was. Dr. Dillon then told her that she had an order for her detention. Dr. Dillon stated that she then went through the order with the patient. Dr. Dillon said “I spoke to her, you know, saying that this order was in place. I mean, obviously she couldn’t…I had to go through it quite a lot because, you know, she didn’t fully understand. She understood that it was probably best for her to come back into hospital, and I spoke to her at length about that, and then I said that this order had been drawn up because she had left the hospital and signed her own discharge. And basically went through it”. Dr. Dillon stated that she went through Dr. Keane’s letter of the 11th December, 2008, to the patient and she also went through the order. She explained that they had got information from Dr. Terry O’Connor that she could have been a probable source of infection, that her isolation was necessary, and that the order was drawn up by two doctors, Dr. Keane and Dr. O’Sullivan, and that under this order she would have to come back into hospital. Dr. Dillon said she did not ever use the word “detained”. As she put it, “I went through it with her, just saying that, really, she would have to come back in”. Dr. Dillon stated that she gave both the letter and the order to the patient.

Dr. Dillon was asked by the judge if the patient had been told what it meant for her to be ordered, as opposed to being asked, to go back into hospital, namely, that she could be subjected to serious punishments including imprisonment if she did not comply. Dr. Dillon said she did not go through that with her. She did, however, tell the patient that she could appeal against the order. The patient was initially told about that when Dr. Dillon met her in Middleton. According to Dr. Dillon the patient was actually conveyed to the hospital in a Garda car accompanied by the female Garda. Dr. Dillon followed behind in her car. Dr. Dillon saw the patient again on the following day in the Mercy University Hospital and on that occasion she suggested to the patient that she might like to consult a solicitor and take legal advice. The doctor stated that she called to see the patient on a few occasions in subsequent days. On the day following her detention she explained to her again about the appeal, but the patient did not seem to be interested at that stage.

Dr. Dillon was cross examined by counsel on behalf of the applicant. She accepted that she had not been authorised in writing to detain the patient. She said that she had been verbally authorised to do so. She said that on the first occasion that she went to serve the order she was accompanied by Dr. O’Sullivan. On the second occasion she went without Dr. O’Sullivan. She understood that the order had to be served on the patient. Dr. Dillon confirmed that the patient was admitted in the middle of November, 2007 because her GP had found her to be quite distressed and she did not seem to be coping well with her children. There were also issues around compliance with the directly observed therapy in that, the public health nurses were reporting problems. She was asked if these things coming together did not raise concerns as to the patient’s ability to cope by herself in the community. Dr. Dillon agreed that they did but stated that a lot of supports had been put in place, like public health nursing and home help. Nevertheless she acknowledged that it was indeed difficult for the patient, as the patient does not have an extended family here. Dr. Dillon agreed that from mid November, 2007 until early December, 2007 there were increasing concerns about the patient’s compliance with her medication regime. Moreover, she was beginning to refuse medication, even in hospital. When asked if she was concerned about the patient’s depression, Dr. Dillon said that she was not looking after the patient in the hospital setting and she was not fully aware of her psychiatric status. Dr. Dillon said it was a joint decision between the lawyers and the doctors as to who exactly was to be served with the order. They got legal advice about the order. The lawyers decided on the actual wording of the order and how it should be brought about. It was a joint legal and medical decision as to who was served. She was told by Dr. Keane to serve the patient with a copy of the order. She was not personally involved in the decision as to who should be served. She did serve the patient. She reiterated that she told the patient that she could appeal. She also reiterated that she told the patient that she was entitled to have legal advice if she wanted it, and she offered to organise this. She also testified that she offered to talk to the social workers on the patient’s behalf if she wanted her to do that. Dr. Dillon said the patient did have access to a telephone. As far as she could remember, the patient had her own mobile phone. Dr. Dillon was asked “how did you explain the Minister for Health to her?” She said “I read out the last paragraph here (referring to the notification letter). Again, you know, obviously her writing to the Minister for Health is going to be quite difficult. So it would be better to do it through a solicitor”. She was asked if the patient knew the name of the Minister for Health or even understood the concept of a Minister for Health. She replied “I suppose on that evening I went through the appeal, you know, that she could appeal it legally. But being not from this country, from a foreign country, I suppose, the whole concept of Ministers and all that, you know, was something. She would not have fully known who the Minister for Health was and that. So I explained to her that she could appeal it, but that it was better to get a solicitor”. Dr. Dillon was asked by the judge if she herself gave the patient any explanation about the Minister for Health and what her role is, and how she may be contacted. The judge asked her “[D]oes she even know where she [the Minister] is based? It is all very fine saying you can appeal to the Minister for Health. I mean, is she in Cork, Dublin, Galway? How is someone who is of poor education, doubtful literacy, in detention in a hospital, without an extensive social network, in a wholly alien environment, how is she supposed to access the Minister for Health? I mean, was she given the Minister’s address?” Dr. Dillon stated that she did not give the patient the address of the Minister. She added that it was because of the factors mentioned by the judge, and the fact that the patient had no extended family here, that she had offered to contact the social workers and get them involved. She was aware that the social workers did become involved subsequently with the patient and also that “pastoral care people were quite involved”. She believed that case conferences were held from time to time and that the patient herself was a participant in some of them. She was asked if she could identify the social worker or social workers in question, and she referred to Ms. Marie Buckley, social worker, as having been involved. Dr. Dillon was asked about the discussion she had had with the patient concerning her possible procurement of legal advice. Dr. Dillon said that she asked the patient if she had access to a solicitor, being an asylum seeker here. She did not seem to be interested. Dr. Dillon characterised her as “just very disinterested and just resigned to the fact that she was going to stay there”.

Dr. Dillon was asked if the patient had a full appreciation of the gravity of her situation. She stated: “I think she was a little bit depressed, but that she was able to make decisions.” Dr. Dillon stated that it was quite upsetting to see the patient have to go back into hospital in the circumstances in which she was returned there, and they were concerned that she was still refusing her treatment. She seemed to be getting problems with her eyes and she was blaming the TB treatment. She felt there was nothing that the tablets could do for her anymore. She kept talking about her children. She wanted to go back and see them. However, she did not seem to want to help herself to get out of hospital. She made no connection between her wish to see her children and the possibility of appealing the order. She just kept going on about how the medication was not helping her. When it was suggested to Dr. Dillon that the patient was an entirely passive player, Dr. Dillon did not fully agree. She emphasised that the patient had taken her own discharge only a day or two beforehand. She added “and then I think when it was explained to her that she would have to come back into hospital, for her own treatment, for her own health, and also that she could be a risk to others, that this Act was going to come into play, – she accepted that. And it was explained to her that she could appeal. It was also explained at length that if she started taking her tablets again that she would improve and that she would then be, I suppose, left out of hospital, and that again, you know, supports would be included for her, and we would do what we could to help her be at home”. Dr. Dillon’s testimony was that she had limited involvement with the patient thereafter. She continued to visit the patient every month or every few weeks. During these visits she would try to persuade her to start taking her medication again. She would also talk to the patient about her children and would see how she was getting on. The patient was primarily under the medical care of the Mercy University Hospital and Dr. Terry O’Connor. She was involved with some of the multi disciplinary meetings that were held from time to time in the hospital. These were convened by the social work department. The purpose of the meetings was to see how the patient was progressing. Dr. Dillon was asked by the judge whether these meetings merely facilitated a process whereby relevant professionals were brought up to speed with different aspects of the patient’s case, or, alternatively, if it was the case that decisions were taken at these meetings as to how she would be managed in the future. Dr. Dillon indicated that both things happened at these multi disciplinary meetings. When asked who the decision maker was, she said that the patient’s clinician would have been the main decision maker. The clinician was identified as Dr. Terry O’Connor. They did discuss the issue of a possible appeal by the patient at these meetings. They also discussed the possibility of her obtaining legal advice. There was never a legal representative at these meetings. Dr. Dillon thought that the patient herself may have been at some of the meetings. When asked how this was facilitated, namely, whether she was allowed out of her room, whether she was gowned and masked, or if everybody else was gowned and masked, Dr. Dillon could not remember clearly. She thought, however, that the patient’s attendance at meetings must have occurred before the patient had attempted to escape and a security guard was placed on her door. Then, upon further reflection Dr. Dillon expressed uncertainty as to whether the patient had been at any meetings. She said that she would have to double check the position. In any case the social worker would be able to give that information. That concluded Dr. Dillon’s evidence.
The evidence of Ms. Marie Buckley
The next witness called was Ms. Maria Buckley, who is a social worker at the Mercy University Hospital. Ms. Buckley told the court that she had been dealing with the patient in the course of her work since 2006. She has seen her on a very regular basis since she was detained pursuant to the s. 38 order. She visits her in her isolation room at least six times a week. Sometimes she visits her out of hours to bring her food that she has requested. Ms. Buckley told the court that she looks upon the patient’s case as being a very sad situation. Prior to her detention, Ms. Buckley had worked towards ensuring that the patient could be at home with her children. She did everything she could to get the relevant services on board in order to provide her with necessary support. The patient was sometimes quite lax about her medications, for various reasons. Sometimes she would claim that she had been too tired to take them, or that she had forgotten to take them. She was being monitored closely while she was in the community.

Following the patient’s detention in hospital Ms. Buckley was concerned with facilitating access to her children, which was quite difficult. She tried to ensure that the patient had regular visits with her children.

The patient had particular requirements because of her illness. A lot of her clothing had to be disposed of, so new clothing had to be purchased regularly. However, she did not have an income as such and Ms. Buckley put in place arrangements that provided the patient with an income of her own to spend on her day to day requirements. She stated “a lot of us were putting in our own money to buy her things at that point …. but then we got funding on board”.

As regards the medication issue, Ms. Buckley was constantly urging the patient to consider taking her medication. She would tell her “if you took your medication, you could be at home”. She used to say to her “you are here, you do not need to be here, you could be at home with your children if you took your medication”.

Ms. Buckley agreed that although English is not the patient’s native language she is competent in English. Moreover, she stated that although the patient seemed to be an intelligent girl sometimes things did not seem to click with her. She thought that cultural differences might partially account for her not understanding. Ms. Buckley was unsure as to the extent of her literacy skills. She stated that the patient never had occasion to write anything. All she ever had to do was give her signature. Her understanding of the position with respect to the patient’s immigration status is that she is in “limbo” because of her illness. When asked as to how frequently she had spoken to the patient about the importance of taking her medications, Ms. Buckley estimated that she had broached the subject with her on between 50 and 100 occasions. Ms. Buckley said that she also explored other possibilities with the patient, in the hope of progressing her situation somehow or other. She spoke to the patient about the possibility of going back to South Africa because there is good treatment there now. She asked her if she would like to return to her mother in South Africa and if would she be willing to do that. She said that the patient would not entertain any of these possibilities.

Ms. Buckley was asked by the court whether, because the patient is a failed asylum seeker, she might have suspected Ms. Buckley’s motives in suggesting her possible return to South Africa, and whether she might perhaps have regarded Ms. Buckley as part of the general immigration machinery that was trying to get her out of the country. Ms. Buckley said that nobody knew what the patient’s thinking was.

The witness was asked whether she had ever raised with the patient the possibility of her appealing to the Minister for Health. Ms. Buckley said that she did. This arose in July. At that point they (the social work department) were urged to advise the patient of her rights. Up until then the emphasis was really on her wellbeing. As far as Ms. Buckley was concerned she was detained lawfully and her job was to make the patient’s situation as bearable as possible. The witness was asked if the patient had a full appreciation of the gravity of her situation. Ms. Buckley recalled on one occasion talking to her about the legality of it and about the law and how serious it was. She said she often spoke to her as a mother would speak to a daughter and she said “For God’s sake, would you ever just see what this is? You are here under the law. You are not going anywhere until you decide to co-operate”. She was asked if the patient appreciated that by trying to escape or by not co-operating she might actually end up with a criminal record, or even spend time in jail. Ms. Buckley stated that the patient was very confused on occasions. On more than one occasion she was very very confused. She thought that on the day she absconded she firmly believed that she had a right to leave.

Ms. Buckley was asked to describe the circumstances in which the issue of an appeal came up in July. She said that a letter came into the office from one of the doctors in the public health department of the HSE requesting that the patient would be informed of her right to appeal against her detention. Ms. Buckley stated that up until that point she had not spoken with the patient about this.

Ms. Buckley said that at a certain point she had urged the patient to seek legal advice through the Legal Aid Board, but the patient refused. Up until then there had been no attempt to discuss with the patient the legality of her situation because the social workers had believed that she could access a solicitor if she wanted to. The basis for this belief was the fact that there had previously been a child protection issue with respect to the patient’s children, and it was known to the social work department in the Mercy University Hospital that she had obtained legal representation in relation to that matter.

At any rate Ms. Buckley went on to give more details of her attempt to get the patient to seek legal advice through the Legal Aid Board. On her own initiative Ms. Buckley made contact with a Ms. Aoife Byrne, Secretary of the Legal Aid Board, at Pope’s Quay in Cork. This happened in or about the month of May, 2008. She stated: “I spelt out the situation to her, that the patient is detained here at the Mercy, and I would like to explore her entitlement to appeal”. According to Ms. Buckley she was told that someone from the Legal Aid Board would come back to her, but they never did. She rang them again and she was told that the patient was not entitled to legal aid because she was due for deportation. Ms. Buckley rang again and pressed the case and the Legal Aid Board sent her an application form for the patient to complete. Ms. Buckley then filled in as much of the form as she could with the patient and asked the patient to sign it. The patient refused to sign it. Ms. Buckley thought that she did not understand the content of the application. She did not understand it on the day.

Ms. Buckley said that she discussed with her colleagues in the office the difficulty she was having in getting legal representation for the patient. One of her colleagues, Catherine Richardson, said that she knew a solicitor and would have a discussion with him about the matter. However, she forgot about it and had to be reminded and that gave rise to delay. The latter events happened in or about the month of June 2008.

Then in July 2008 the issue of advising the patient concerning her right of appeal cropped up. The witness said “this notification came in, and it urged that social work should be advising the patient of her rights, and at that time it became very real to me then that really, yes, something should be done”.

It is important to digress at this point to state that Ms. Buckley did not have the letter to which she had referred with her in court. The court asked if this could be forwarded separately for the court’s consideration and counsel for the HSE undertook to arrange for this to be done. The court subsequently received the letter in question under cover of a letter from the first named respondent’s solicitors date the 31st October, 2008. The letter in question is a letter from Dr. Elizabeth Keane, addressed to Mr. Pat Madden, Chief Executive Officer, Mercy University Hospital, dated the 9th July, 2008. The letter is in the following terms:-

“RE: Section 38, Health Act 1947

Dear Pat,

Further to your communication (20th June, 08) in relation to the above, legal advice was sought from Mr. Diarmuid Cunningham, Comyn Kelleher Tobin, Solicitors (copy attached). Mr. Cunningham advised that the case ‘should be brought specifically to the attention of the Department of Health and Children, the body with the legislative capacity to effect change’. Based on this advice we asked Dr. Kevin Kelleher, Assistant National Director Health Protection, to bring this to the attention of the Minister for Health and Children. Dr. Kelleher has informed me that he has already had discussions with Mr. Chris Fitzgerald, Principal Officer, Department of Health and Children and that the legislation was in the process of being reviewed. He indicated that a formal letter (as per draft from Mr. Cunningham) would also be sent to the Minister for Health and Children (copy attached). Dr. Kelleher has also suggested that the patient’s social worker might again advise her of the right to appeal the order and to facilitate her should she wish to exercise that right.

Yours sincerely”

This letter was c.c.’d to Dr. Terry O’Connor; Dr. Margaret O’Sullivan; Mr. Rory Conway of Conym Kelleher Tobin, Solicitors, and Mr. C. Rutherford, Senior Social Worker.

Returning to Ms. Buckley’s testimony, she stated that in response to this letter she organised a multi disciplinary meeting. She was asked by the judge if any lawyer attended this meeting, and in reply she said it “risk management” at the hospital were involved. She was asked what did she mean by “risk management”, what class of professional was this risk manager. The witness thought that the individual who attended the meeting was the liaison officer between the hospital and its solicitors. She identified this person as being a Mr. Kieran Murphy. It was confirmed to the court that Mr. Murphy is a qualified but non practising lawyer.

Prior to the meeting, Ms. Buckley spoke to Dr. O’Connor and expressed the view to him that she felt in an awkward position because on the one hand she was employed by the hospital on the one hand, and on the hand she having to adopt the role of advocate on behalf of the patient (against the hospital). Dr. O’Connor was sympathetic to her dilemma. He said he would “be quite happy for this whole law to be addressed” and said as much at the meeting. Kieran Murphy was present at the meeting and Ms. Buckley’s understanding was that he was going to go from the meeting to the hospital’s solicitors to discuss the matter.

Following the multi-disciplinary meeting the witness visited the patient on four different occasions and brought with her on each occasion a draft letter addressed to the Minister for Health for the patient to sign. Unfortunately, the patient would not sign it.

The draft letter in question was produced for the court’s consideration. It was annexed to a letter sent by the witness’s superior, Mr. Colman Rutherford, Principal Social Worker, to Mr. Pat Madden, Chief Executive Officer of the Mercy University Hospital on the 1st August, 2008. Mr. Rutherford’s letter was in terms:

“Dear Mr. Madden

I refer to Dr. Elizabeth Keane’s letter of the 09/07/08 in relation to the above named patient. In this she outlines Dr. Kevin Kelleher’s suggestion that the patient’s social worker might advise her of her right to appeal her detention under s. 38 of the Health Act 1947. I spoke with N.I. today, (31/07/08) in relation to this matter. Ms. I. has been in good spirits for the past few days. This seemed an appropriate time to attempt the task. Ms. Buckley, the allocated MSW and I, had two separate discussions with Ms. I.. In the first I simply outlined the appeal process and that this would safeguard her rights. However, she was not happy to sign the attached note. This seemed to be linked to her conviction expressed during the interview that she was not sick and had become a patient at the hospital merely because she had been visiting. Although pleasant and engaged there was a paranoid edge to her conversation. Later in the afternoon Ms. Buckley, social worker and I returned to Ms. I.. On this occasion Ms. Buckley with whom the patient has a very good relationship asked if Ms. I. wished to write in her own words her attitude to her detention. This was also declined on the basis that Ms. I. had not gone to school and could not write. She also declined to allow either of us to write on her behalf, saying she did not want to leave the hospital because she had nowhere to go.

It may be that in the coming days Ms. I. will reconsider her position. However, the current situation is that she has, as suggested by Dr. Kevin Kelleher, been further advised of her right to appeal the order but has declined to do so.

Yours sincerely”

The attached draft letter was addressed to Ms. Mary Harney TD, Minister for Health and Children, Hawkins House, Dublin 2 and was in the following terms:-

“RE: Ms. N.I. C/O Mercy University Hospital, Cork

Dear Minister,

As you know I am currently detained by the HSE under s. 38 of the Health Act 1947, since 11 December 2007. I wish to apply to you to review this detention pursuant to s. 32(2)(h) of the Act.

Yours sincerely,

N.I.

c.c. Mr. Pat Madden, CEO, Mercy University Hospital, Cork
Dr. Terry O’Connor, Consultant Respiratory Physician, Mercy University Hospital, Cork

Dr. Elizabeth Keane, Director of Public Health, HSE, Cork”

The letter was typed on the letterhead of the Mercy University Hospital Social Work Department and dated Thursday, 31st July, 2008. The words “not sent” are endorsed upon it in handwriting.

Ms. Buckley stated that she had said to the patient “At least N., if we ask the Minister to look at it, something might happen” but she was totally disinterested. Ms. Buckley said that she spoke to the patient in very plain language. She said to her “you know this means you could be at home with her children. However, the patient replied “I am not going anywhere from here because I have nowhere to go”. Ms. Buckley then responded “But N., what do you mean, you have nowhere to go?” She said “My home is gone”.

Ms. Buckley explained that the patient was aware at that stage that a month previously her flat been given up by the HSE. The HSE was no longer paying for it. Ms. Buckley said she told the patient “N., you know, I can organise to get other accommodation for you. That’s not a problem, you know, sure we have done that for you in the past”. Ms. Buckley stated that she felt the patient had lost faith in humanity and possibly didn’t trust her. Ms. Buckley also stated that she felt that it was partly to do with the level of the patient’s cognitive ability. Ms. Buckley didn’t think the patient had the ability to work it out in her head. Ms. Buckley reiterated that she broached the question of a possible appeal on four separate occasions with the patient. On two of those occasions she went to see her with principle social worker and on two occasions she went by herself. Ms. Buckley was asked if the patient was offered any other assistance in regard to the appeal and she said “No”, I think we were waiting to see what the hospital’s solicitors were going to do”. She received no communication from the hospital’s solicitors concerning what she was expected to do in terms of appraising the patient as to her rights, apart from the right of appeal.

Ms. Buckley was asked if there was issue in relation to the ability of the patient to sign the draft letter. She stated there was never an issue in relation to her ability to sign. Her willingness to sign was a different matter. For instance, there were often times when her social welfare cheques would need to be signed and she would refuse to sign them. She would say no and dismiss her (Ms. Buckley). Then on another day, she would quite happily sign four in a row. It would depend on what frame of mind she was in. The witness was asked by the judge whether she thought the patient was exhibiting “inexplicable irrationality” or whether she thought her behaviour was to do with issues of trust and confidence. Ms. Buckley’s view was that it was the former. The witness was asked if she had offered to help the patient in any way apart from drafting a letter of appeal for her. She stated that she knew that the patient was in telephone contact with her mother, and so she contacted the mother. Ms. Buckley said: “So I asked her for her mother’s telephone number, in order that I could contact her mother. And she wanted me to anyway. So I was to liaise with her mother. Just generally, I was reminded by my principal that confidentiality was an issue there, so I was very careful not to relay the patient’s diagnosis or perceived diagnosis to her mother. I asked her mother if she would consider coming to visit her daughter, and she said she would love to, but she couldn’t afford it. So I went to her daughter, to the patient, on one of her lucid days, that I thought she was very together in her head, and there were some days like that, and I asked her to consider “would you pay from your fund for your mother to come?” and she was quite happy to do that at the time. And she was very happy when her mother came the first time. But her mother came and saw her situation, and I gather was quite distressed by it.”

Ms. Buckley went on to explain a difficulty that she has had with respect to the case. She told the court that as a social worker, she is trained to take the patient’s rights into account, and to respect the patient’s decisions. Moreover, as far as the hospital was concerned, the patient was compos mentis. However, Ms. Buckley had her doubts about the patient’s mental state and raised this persistently at the multi-disciplinary meetings. She was aware that the patient wasn’t suffering from a mental disorder as far as Dr. Cooney was concerned. She made Dr. Cooney aware of her reservations by writing her observations in the patient’s medical charts. Whenever an incident or event occurred that give her concern, she wrote it in the chart. She explained that “I had it in my heart that she wasn’t of sound mind”. At the same time she was aware that the patient was deemed to be compos mentis and she felt that this obliged her to respect the patient’s decisions. Accordingly, she didn’t feel it appropriate to pressurize the patient unduly. She then added: “The appeal, as far as I was concerned, wasn’t the huge issue. The huge issue, really was to safeguard the patient’s rights under the order she was under. That was, I felt, my brief”.

Ms. Buckley explained that she felt that the patient was misunderstood. There was a lot of misunderstanding around her condition. She was perceived to be very aggressive and very bold and uncooperative. She saw the patient the first day and to her the patient seemed to be a nice enough woman and a great mother with her children. She had not had any difficulty with the patient and while she was aware that other people wore goggles when visiting her because the patient had spat in people’s faces, she herself never wore goggles when going in to see her. She said that the patient could be dismissive and she knew when to move away and to leave the room in order not to upset her. Ms. Buckley said that she never wanted to upset her. She gave the following example: “For instance, if I would urge her to allow me to take her washing out of the room, she would refuse. She would say no. Now, it would have been much better if we could have cleared the room of her laundry in order to keep it clean and keep the environment right. She would refuse. I would imagine other people might have pushed her a bit and that could cause her to be more angry”. She was asked if she was aware that some of the chaplains had gained the patient’s confidence to a degree. She confirmed that she was aware of that and that there were three chaplains involved with her. She stated that the patient was nominally a Methodist but was probably agnostic if she was thinking rationally. Ms. Buckley stated that the three chaplains that she was referring to were all Roman Catholic. One was a nun, one a priest and one a lay person. The witness was then asked if she had had problems in raising concerns, or issues she felt needed to be canvassed, at the multi-disciplinary meetings. She stated “at every meeting I raise the issue of her mental competence. I ask, you know, could she have a brain scan, just so we could assess, because there was a mention that she possibly might have an AIDS dementia and one of my colleagues was familiar, she said, with that from previous work she had done, and that the patient showed all the symptoms of AIDS dementia. So, I was asking if she could have a brain scan. I was asking if she could be assessed, and out of that, she was assessed again by the psychiatrist and deemed to be compos mentis again. A brain scan, they felt, wouldn’t be on the cards. It wouldn’t be safe to try to – for her to have a brain scan”. Ms. Buckley said that for the most part the issues raised at the multi-disciplinary meetings related to “co-operation and collaboration between all of us involved, that we were sure to be doing the right thing for her”. That concluded Ms. Buckley’s examination in chief.

She was then cross-examined by counsel for the applicant. Ms. Buckley was asked about the occasion, on which she visited the patient accompanied by Mr. Rutherford as described in Mr. Rutherford’s letter to Mr. Madden of the 1st August, 2008. Mr. Rutherford had stated in that letter “I outlined simply the appeal process and that this would safeguard her rights”. Ms. Buckley was asked to describe exactly what happened. She said “I felt Mr. Rutherford was explaining the technicalities of it, you know, that you have right to write to the Minister and tell the Minister that you are being held here and you have a right to ask the Minister to look at your situation. And I think I interjected then, at that point, to say, you know, ‘Ms. I., you could go home from here’, you know, in a very human way”. She was asked about the sentence in Mr. Rutherford’s letter which stated “this seemed to be linked to her conviction expressed during the interview that she was not safe and had become a patient of the hospital, merely because she had been visiting”. She didn’t recall that. She was then asked to comment on Mr. Rutherford’s assertion that “Although pleasant and engaged, there was a paranoid edge to her conversation”. Ms. Buckley said that that accorded with her recollection. The patient was defensive and not very trusting. The witness was asked by the judge if she agreed with Dr. O’Connor’s view that the patient had something of a persecution complex. Ms. Buckley said she noticed that in her from day one. She noticed this ever before she perceived the patient as having a mental incapacity. Ms. Buckley was asked for her view of the patient’s assertion that she could not write. The witness wasn’t sure if she could or not. She felt that she had had some schooling, the equivalent of education to maybe second or third class. She was satisfied that, although she may not have been educated to very high standard, the patient was intelligent. The witness was asked about her earlier assertion that some things didn’t seem to click with the patient. She was asked what did she mean by that and she stated “Sometimes, she seemed vague. I could be talking to her about anything, really. I often tried to have just normal, everyday, conversation with her…about where she lived. I was familiar with where she lived and where the children were at school or whatever. But sometimes there was this vagueness about her. And I couldn’t assess what that was about”. The witness agreed that this was a source of on-going concern for her. She felt that the patient had difficulty comprehending her situation and things that were being told to her. There were times when she believed the patient didn’t really understand what was happening. The witness was asked by the judge if her apparent disinterest in leaving hospital could be due to paranoia on her part that the offer was not without strings attached. In other words, that she might end up having to face her deportation order, or that she might have to face other adversities, whereas she was in a safe environment while in the hospital. She was specifically asked to comment on Dr. Dunne’s speculation that the patient might be feigning though not in the malingering sense. The witness replied “Judge, that thought has occurred to me on occasions, I have wondered about it. I often times addressed her as you would address, maybe, a family member, again to say, “For God’s sake, what is this about? Do you want to stay here? Is it that you are afraid of being deported?” I would speak very plainly to her and at that point, she would dismiss me again. But then there were other occasions when I heard things from her, or saw her behave in ways that seemed very abnormal to me”. The witness then added “In the early days, after her detention, she began talking about a snake being in her, that there was a snake had taken up position in her, and she would talk about what the snake was doing, how it was wriggling, what it was doing. Then she developed a, kind of, an obsessive compulsive thing around her nose, and around what was up her nose, and what she did with it. And she would repeat this. It was cyclical, over and over and over again. It was at that point that I actually contacted the priest and asked him to visit her, when she was talking about the snake and spiritual things.” Ms. Buckley said that she frequently came across the patient talking to somebody who wasn’t in the room. She estimated that these kinds of things happened on four of the six times a week that she would visit the patient. Although at that stage she was unable to use a mobile phone, she would often be seen talking into a mobile phone, supposedly to her ex-partner although he was not on the phone. Ms. Buckley described the sorts of bizarre behaviour that she had observed. She stated that on one occasion she had arranged an access visit between the patient and her daughter. She was suddenly bleeped and asked to go urgently to the patient’s room. The witness said “She had her daughter, who I know who she was just mad about and adored, caught by the hair and wasn’t letting her out of the room, and there was a lot of upset going on. Outside people were crying, there was a lot of security guards there and she had her daughter caught in the room. So, when I went into the room, the room was flooded. Two taps were on in her en suite, and it was the stopper was in. So, there was about an inch and a half or two inches of water in the room.” … “So, the first thing, I went in and I greeted her and I went straight in to turn the taps off and then I came over and I distracted her, and Eileen the pastoral care worker was in the room as well and very upset. So, she quickly got the daughter out and I was left in the room with her, and when she realised the daughter was being taken, she kicked and screamed, and tried to grab the door, to go after her daughter to get her back, and security stopped that and let me out.”

The witness couldn’t recall for certain if she had made a note in the patient’s medical file concerning this incident. She thought that she probably had done so but couldn’t be 100% sure. She said that the patient was very confused “an awful lot of the time”. She felt there was a spiritual dimension to the case and that was why she called the priest in. At one point she wondered if the patient was possessed or may have believed that she was possessed. She agreed with the judge that witchcraft and that sort of thing is very prevalent in traditional religions in Africa. She said that she discussed the case with a member of her team and her colleague thought it could be Voodoo.

Ms. Buckley reiterated that she raised her concerns at the multi-disciplinary meetings that were held from time to time. She described the history of these meetings stating “Initially, the meetings were started up between myself and the pastoral care sister. We were concerned really about her unwillingness to engage with the nursing staff and the cleaners in her room, and her room was becoming disorganised and all of that. So, we started these meetings, so, we would invite Dr. Dillon from the chest clinic in St. Finbarr’s, we invited the public health nurse who had been involved in her care when she was in the community, because the thinking was that would go back into the community, perhaps, at some stage, if she agreed to take her medication. Dr. O’Connor was always present, the pastoral care people were present, myself, perhaps my colleague from our department, as well, Catherine who had worked with her, we were all present”. She added the hospital’s risk manager, Mr. Murphy also attended. However, the psychiatrist was never present. Ms. Buckley was asked if she had ever had the opportunity to discuss the patient’s case with Dr. Cooney. She said that he did not. She added “What I was being told was that she was compos mentis and the psychs, as we would say in the hospital, considered her to be compos mentis”. She was aware that Dr. Cooney had seen the patient in the early days and that he saw her again in the interim at the witness’s request. She recalled the incident that Dr. Cooney had spoken about in his evidence where the patient had barricaded herself into her bathroom. The issue was dealt with by Ms. Buckley arranging for the hospital carpenter to remove the door between the patient’s bedroom and her bathroom. That concluded Ms. Buckley’s evidence.
The evidence of Mr. Colman Rutherford
The final witness in the case was Mr. Colman Rutherford, Principal Social Worker. He confirmed that day to day social work involvement with the patient was the responsibility of Ms. Buckley. He was Ms. Buckley’s supervisor. He said that the circumstances of this case represented a unique situation in his experience. There were two dimensions to the case with which he was concerned. One concerned child protection issues – the patient’s children were in care – and the other was the patient’s own welfare. He was aware that the Legal Aid Board had acted for the patient in respective of the child care issues. She didn’t have legal advice in terms of her own situation. He stated “there wasn’t any effort by ourselves to seek legal advice directly for her. I suppose the action that we took was to seek legal advice for her mother, and that was primarily in relation to the child protection matters”. He confirmed that if the patient had wanted to have access to a solicitor, they would have facilitated that. However, their main effort was to try and facilitate an application to the Minister. He then described the circumstances in which he had written the letter of 1st August, 2008. It was written in direct response to a suggestion made by Dr. Kevin Kelleher which had been reported in the letter from Dr. Keane to the CEO of the hospital. The correspondence had been copied to him and the suggestion was acted upon. They identified a period when the patient was in good form in order to approach her. When asked why it was necessary to wait until she was in good form, he stated that the patient’s mood was quite labile, that there were days when Ms. Buckley would be dismissed without a hearing, that there were days when the patient was more confused and less able to understand what they were trying to say to her. For this reason they waited “until there had been an established period of good form, if you like, when she might be open to hearing what we were saying to her”. He was asked how he canvassed the issue with the patient. He said “We did this in two parts. Both myself and Marie Buckley went on both occasions. On the first occasion, I took the lead in talking to Ms. N.. She, Marie, introduced us, I explained who I was, I explained, as I have said in the letter, that there was a simple procedure, that she could apply to the Minister to have somebody review what was happening to her in terms of being in hospital and having to stay there”. He confirmed that the consequences of a review were explained to her. She was told that all she needed to do was to sign the pro-forma letter that had been prepared. The judge asked Mr. Rutherford the same question that he had asked Ms. Buckley, namely, whether he thought the patient was exhibiting “inexplicable irrationality” or whether he thought her behaviour was to do with issues of trust and confidence. Mr. Rutherford felt it might be an issue of trust and confidence in him because he was a stranger to her. She was being presented with this option by a stranger. It was for this reason that they went back on the second occasion and this time Ms. Buckley took the lead and he was merely in the room. He described how on this second occasion “we took a more general approach. … we asked her to you want to write something? Do you want to say in your own words that you don’t want to be in here, or that you want this review, or that you want something to happen?”. She said she couldn’t do that and that she couldn’t write. So then we suggested to her, “If you just say to us, you want this appealed, you don’t want to be here, we can then write and appeal on that basis”. Mr. Rutherford said she said very clearly to them that she didn’t want to appeal because she had nowhere to go. He specifically recalled Ms. Buckley seeking to reassure the patient and offering to arrange accommodation for her. He said that this detail stuck out very clearly in his mind, because he himself wasn’t entirely sure that what Ms. Buckley had offered would in fact have been possible. At any rate, the offer was made. Notwithstanding this offer, the patient was adamant that she didn’t want to do anything about appealing the order. Mr. Rutherford was of the view that the patient understood what the appeal process involved and she understood how it could be accessed. He felt she was able to think about that and to say that she didn’t want to leave the hospital, that she had nowhere to go. He felt she knew what she was saying when she said she didn’t want to appeal.

Mr. Rutherford added: “We have speculated as whether there was a benefit to her staying in the hospital, if only out of not having to address the issues of finding new accommodation or settling into a new accommodation or having to deal with the issue of deportation, if that was in front of her.” He thought that there might be an element of denial and avoidance. He was asked for his views concerning whether the Social Work Department had a role to play in vindicating the patient’s rights. He said “I think the Social Work Department, and in fairness the other staff in the hospital as well, have been very keen to try and vindicate the patient’s rights, and that has sometimes been very difficult because her behaviour has sometimes been very challenging”. The Social Work Department was primarily concerned with her day to day welfare. What he characterised as “the high level problems, the high level issues about the detention, its legality, the appropriateness,” were dealt with at a high level within the hospital. He was asked if the issue of an advocate for the patient’s rights had ever arisen. He said “I think advocacy of her rights has been on-going theme within the hospital. Maybe primarily by ourselves and by pastoral care, but it is very much an issue that has been live to all staff. It was pointed out to Mr. Rutherford by the judge that the hospital was the detainer and he was asked if any effort had been made to bring in somebody independent. He replied that there had not, as far as he was aware. He was asked if any reviews had been carried out of the patient’s detention. Mr. Rutherford said that the multi-disciplinary meetings to some extent formed a review process but that there was actually a more formal review currently underway. This has been undertaken by a Dr. Neil Brennan, a consultant physician. Mr. Rutherford was asked if the question of comprehensive outside psychiatric review had been considered. It had not. It was suggested to him that it might be appropriate to seek a comprehensive re-evaluation of the patient’s psychiatric status by an outside team, given the differences of professional opinion between Dr. Cooney and Dr. Dunne. Mr Rutherford replied “I suppose”. However, he added “Not to be pedantic about it, but I think the situation is that the psychiatric review is requested by the consultant in charge of her care and is made back to him. So, essentially, it is for him to decide where that comes from”. That concluded Mr. Rutherford’s evidence in chief.

Under cross examination by Counsel for the applicant he agreed that his team did regard aspects of the patient’s behaviours as irrational and that they did have concerns about her mental capacity. He said “I wouldn’t want to say at all that we think, that I thought, that she was functioning in a normal way”. He was asked if he thought she was capable of acting on her own behalf and he said “We clearly tried to address the business of was she capable of acting on her own behalf, and the issue that you have raised is the same issue that we came upon. If she understood the process that was available, if she understood that it was being offered to her, and it was being offered in a way that was designed to try and be accessible and to be agreeable to her, and then she refused that. For that purpose, it maybe not for any other, but for that purpose, she had made a decision that was competent.” He felt that her behaviour was certainly strange. He thought that she was clearly disturbed and clearly distressed. That concluded the oral evidence in the case.

It is important to record that on the instructions of the Court, a message was communicated to the patient via one of the Mercy University Hospital chaplains, advising her of the inquiry then being conducted, and extending an invitation to her to give evidence, or otherwise to address the Court, via a video link from the Mercy University Hospital. The patient did not respond to the invitation.

The matter was then adjourned to the 17th of November, 2008 to enable the parties to file detailed legal submissions.
Supplemental Evidence on Affidavit
At the sitting of the Court on the 17th of November, 2008, Counsel for the third and fourth named respondents, namely, Ireland and the Attorney General, sought leave to file an affidavit, sworn by a professor of microbiology, elaborating on the nature of the public health risk. The Court acceded to this application and received an Affidavit of Wim Meijer sworn on the 17th of November, 2008.
The Affidavit of Wim Meijer
Professor Meijer is an Associate Professor of Microbiology and is Subject Head of Microbiology in the School of Bio-Molecular and Bio-Medical Sciences at University College Dublin. He deposed as follows:

1. I have a BSc and MSc in Biology from the University of Groningen, the Netherlands, and obtained a PhD from that University in 1990 following research in physiology and molecular biology in bacteria. Following Post-Doctoral work in The Ohio State University, I lectured Microbiology in the University of Groningen from 1991-1997. I have lectured in University College Dublin in the Department of Microbiology since that date. I was appointed Subject Head of Microbiology in the School of Biomolecular and Biomedical Sciences in 2005 and Associate Professor of Microbiology in 2006. I am also a principal investigator in the UCD Conway Institute and Dublin Molecular Medicine Centre. In addition, I have served on the Microbiology Committee of the Health Research Board, Enterprise Ireland and the European Union.
2. I have specialised knowledge about Tuberculosis and related microorganisms, which is part of my area of research and teaching. This includes the pathogenesis, proliferation and dissemination of TB.

3. I have been informed that the daughter of the applicant has been detained as she is a probable source of infection of Multi (or Multiple) Drug Resistant Tuberculosis (MDR-TB) and that detention is considered necessary to isolate her. I have not examined the applicant’s daughter nor have I considered any information relating to her -1 make this affidavit for the purpose of explaining the general position regarding the infectiousness of MDR-TB and prognosis for persons infected therewith and not to comment on the individual case before this Honourable Court.

4. In my opinion, the existence of a power to detain a person with certain infectious diseases is necessary to prevent the spread of such diseases. A growing number of other experts, including Dr. Mario Raviglione, Director of the WHO Stop TB Department, have expressed the view that governments need the right, if necessary, to confine people with certain infectious diseases, including TB. The WHO Handbook for National TB Control Programmes, Implementing the WHO Stop TB Strategy, WHO, 2008 provides at page 128, that:

“… legislation should provide for certain extraordinary situations where involuntary compliance with key measures is required to protect public health, subject to appropriate safeguards (e.g. mandatory medical examination, isolation, quarantine) or where other measures such as contact tracing may be necessary.”
The guidelines of the United States’ Centres for Disease Control and American Thoracic Society recommend isolation of infectious TB patients. (CDC. Essential components of a tuberculosis prevention and control program: recommendations of the Advisory Council for the Elimination of Tuberculosis. MMWR 1995; 44(No. RR-11):1–16.; American Thoracic Society, CDC, Infectious Diseases Society of America. Control of tuberculosis in the United States. Am Rev Respir Dis 1992;146:1623–33.).
5. Detention under the Health Act, 1947 (as amended) is permissible in respect of the following diseases:

• acute anterior poliomyelitis,
• cholera,

• diphtheria,

• paratyphoid,

• plague,

• severe acute respiratory syndrome (SARS),

• smallpox,

• tuberculosis,

• typhoid,

• typhus,

• viral haemorrhagic fevers (Lassa, Marburg, Ebola, Crimean Congo).

6. Due to the infectiveness and prognosis for persons infected with the diseases listed above, I consider that it is necessary, from a medical point of view, that there be a power to detain persons who are sources of infection of these diseases.
7. Tuberculosis (TB) is a disease that can be transmitted by tiny airborne droplets. If a person who is infectious with TB coughs or sneezes, a person in his or her immediate vicinity may become infected. While repeated contact is usually required for infection, it is not necessary. The means of infection with MDR-TB or XDR-TB (extensive drug resistant TB) is the same as for drug susceptible TB. HIV and TB are synergistic infections, meaning that the risk of infection and developing tuberculosis is higher in the HIV-positive or immuno-compromised populations and the prognosis for such patients is worse than for immunocompetent patients.

8. MDR-TB takes at least four times as long (2 years) to treat than TB and has a higher mortality rate due to the resistance of the causative bacteria to the front line drugs isoniazid and rifampin. It has spread worldwide. It is estimated by the World Health Organisation that there are up to 1.5 million cases of MDR-TB and that there are approximately 420,000 new infections and 116,000 deaths each year. The outcome for persons with MDR-TB is significantly poorer than for those with drug susceptible TB.

9. MDR-TB, which emerged from MDR-TB, is resistant to isoniazid and rifampin, and in addition is resistant to any fluoroquinolone and at least one of three injectable second-line drugs (i.e., amikacin, kanamycin, or capreomycin). XDR-TB is virtually untreatable, and as a consequence the mortality rate is very high. Drug resistance emerges as a consequence of incomplete or inconsistent treatment with antibiotics, which is particularly relevant in unsupervised MDR-TB patients, bearing in mind that treatment of these individuals takes approximately 2 years of consistent antibiotic treatment. Lapses in treatment stimulate the emergence of drug resistance.

10. In summary, incomplete or inconsistent treatment with antibiotics of MDR-TB patients creates a risk of the emergence of XDR-TB – which is virtually untreatable.

11. The 4th Report of the WHO I IUATLD Global Project on Anti-Tuberculosis Drug Resistance Surveillance, Anti-Tuberculosis Drug Resistance in the World, 2008 states that XDR-TB has been recorded in 45 countries. The WHO regards XDR-TB as a serious emerging threat to global public health, particularly in countries with a high incidence of HIV.

12. The potential spread of such a virulent airborne disease as MDR-TB and in particular XDR-TB is one of the worst nightmare scenarios for epidemiologists, conjuring up images of numerous TB sanatoria that were common in Europe and the United States prior to the development of antibiotic treatment. The potential risk to the public from MDR-TB or XDR-TB is significantly more serious than the risk to the public of diseases such as MRSA.

13. In my opinion the public health risks associated with MDR-TB and XDR-TB are very serious. While MDR-TB can be treated, although at high cost and over a long period of time, XDR-TB, which may emerge from MDR-TB, is virtually untreatable. Viewing the matter from a public health viewpoint, it is my clear professional opinion that, for the State to safeguard public health, it must have the power to isolate and detain patients diagnosed with a highly infectious disease as specified in the Health Act of 1947 (as amended).”

That concluded the evidence in the case.
The Issues
This is an inquiry under Article 40.4 of the Constitution. The terms of reference of the inquiry were framed by Article 40.4.2˚,which requires the Court to forthwith enquire into the complaint and after giving the person in whose custody the person is detained an opportunity of justifying the detention, order the release of such person unless satisfied that he is being detained in accordance with law. Accordingly the Constitution only allows for two possible outcomes. These are that the Court would either (i) find the detention of the patient to be lawful, declare it to be so and (subject to the possible reference of a constitutional question to the Supreme Court under Article 40.4.3˚, as hereinafter discussed) close the inquiry or (ii) find the detention of the patient to be unlawful, declare it to be so and order her immediate release. Moreover, in the event of it finding that the patient was in unlawful detention the Court would not have the option of staying her release or attaching conditions to her release.

While this case has raised a variety of issues to do with matters of public policy; the risk of epidemic; the public interest both local and national; the adequacy of existing legislation; the need to balance the public’s right to protection with the patient’s rights to liberty, to bodily integrity, to self determination, and to privacy; the patient’s mental capacity and ability to take decisions; cultural difficulties; the legal requirement of consent to medical treatment, possible limits on the right to refuse medical treatment; whether the patient might be medicated against her will in any circumstances and, if that were possible, the theoretical means by which she could be treated involuntarily; possible invocation of the wardship jurisdiction; and so on, this Court is constrained in that it can only have regard to those issues to the extent that they have a bearing on the legality of the patient’s detention. Save to that limited extent, they are not matters to be appropriately considered within the bounds of an inquiry under Article 40.4, and, although they might be legitimately canvassed in other proceedings on another day, there are not, in so far as the Court is aware, any such proceedings presently in being.

There is one other action open to the court and I have previously alluded to it. Article 40.4.3˚ of the Constitution provides:

“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 and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.”

Accordingly, in the event that I were satisfied that the patient’s detention is in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, I would be obliged to refer the question of the validity of that law to the Supreme Court by way of case stated.
It seems to me therefore that the issues that the Court has to consider are as follows:

(1) Was the patient detained, and does she continue to be detained, in accordance with a law? In the particular context of this case, these questions embrace a number of sub-questions, namely:
(a) Under what law, if any, was the patient detained initially, and under what law, if any, might her detention be authorised on an on-going basis?
(b) In terms of the patient’s initial detention, did the detainer act intra vires the law in question, and in accordance with principles of constitutional justice?

(c) In terms of the patient’s continuing detention, is the detainer continuing to act intra vires the law granting power of detention, and is that power being operated constitutionally on an on-going basis?.

(2) If the patient’s continuing detention is in accordance with an otherwise lawful power of detention, is the law purportedly authorising that detention valid or invalid having regard to the provisions of the Constitution?

Submissions
All of the parties have provided me with extensive written legal submissions and have referred me to case law on which they rely. Moreover, I received detailed oral submissions from Counsel on behalf of the various parties over two days on the 17th and 18th of November, 2008. I am most grateful for this assistance.

I do not propose to review the submissions and authorities comprehensively in the course of this judgment but will refer to them as necessary in course of addressing the issues for decision that I have identified.
The legal basis for the patient’s detention
The patient is presently being physically detained at the Mercy University Hospital in the City of Cork. It is clear from the Certificate presented by Jim Corbett to which I have previously referred that she is being detained there purportedly in pursuance of an Order made by under s. 38 of the Health Act, 1947 as amended.

I am satisfied that, subject to the issue of its constitutional validity, the aforementioned s. 38 does provide, to those who may within the terms of the section lawfully invoke it, a statutory power of detention in respect of a person who is a probable source of infection with an infectious disease and whose isolation is necessary as a safeguard against the spread the infection, in circumstances where that person cannot be effectively isolated in his or her own home. Accordingly, the power of detention relied upon does exist, and the Court is satisfied that legislation creating it was in force at all material times and that it remains current. It is therefore necessary to consider whether s. 38 was properly invoked, both in terms of vires and with respect to principles of constitutional justice.

The initial detention – issues as to vires and constitutional justice
The power to make a detention order under s. 38 is reserved to a chief medical officer as defined in s. 2 of the Health Act, 1947. Under s. 2 of that Act “the expression ‘chief medical officer’ means a county medical officer for a county and a city medical officer for a county borough. That definition was of course directly relevant to the system of health administration that existed in 1947. It is of only indirect relevance now. Nevertheless, the Court is satisfied that, by virtue of provision 4(2) of Schedule 5 to the Health Act, 2004, entitled Savings and Transitional Provisions, the functions of such chief medical officer may be performed, within the dispensation of health administration that obtains today, by an appropriately qualified medical practitioner who is an employee of the Health Service Executive and is designated in writing by it to perform such function. I am satisfied on the evidence that Dr. Elizabeth Keane, who made the s. 38 Order in this case, is an appropriately qualified medical practitioner who is an employee of the Health Service Executive. I am further satisfied on the basis of the “Delegation Order”, dated 1st June 2007, to which I have referred previously, that she is designated in writing to perform the functions of chief medical officer throughout the HSE South region, i.e. throughout the county of Cork (to include the county borough of Cork) and the county of Kerry respectively. Accordingly, Dr. Keane was a person who could lawfully invoke the power of detention under s. 38 in appropriate circumstances.

The first point of challenge by the applicant relates to the validity of Dr. Keane’s opinions.

The applicant points out that it was a prerequisite to a lawful detention under s. 38(1) that Dr. Keane should have formed valid opinions that (i) the patient is a probable source of infection with an infectious disease; (ii) her detention and isolation is necessary as a safeguard against the spread of infection, and (iii) she cannot be effectively isolated at home. Moreover, the section requires that such opinions should have been based:

(a) upon Dr. Keane’s own inspection of the patient, or
(b) upon information furnished to her by a registered medical practitioner who has inspected the patient.

The applicant submits that while the section allows for the utilisation of either first hand information (i.e. information gathered in the course of a personal inspection of the patient) or alternatively, second hand information (i.e. information furnished by a third party registered medical practitioner who has inspected the patient) in the formation of the three required opinions, in each case Dr. Keane was obliged to the personally evaluate the information in question, and to base her opinions upon her evaluation of that information. It is contended that the evidence establishes that Dr. Keane did not inspect the patient personally and that she relied instead upon the inspection of Dr. Terry O’Connor. It is further contended, however, that Dr. Keane did not personally evaluate the information gathered by Dr. O’Connor. Rather, she unquestioningly and uncritically adopted opinions formed by Dr. O’Connor. It was submitted that in the circumstances Dr. Keane could not be said to have independently formed, and to have bona fide held, the three required opinions.
The Court is satisfied on the evidence that this submission must be rejected. The letter of Dr. Terry O’Connor to Dr. Margaret O’Sullivan dated the 10th of December, 2007, presented a very detailed clinical picture concerning the patient’s illnesses, the risks associated therewith, the need for her isolation, and the impracticality of managing her at home. Dr. Keane, who considered that letter amongst other information, did not uncritically and unquestioningly adopt the views of Dr. O’Connor. The evidence establishes that she discussed the contents of his letter with him in the course of a teleconference, and that she also sought legal advice on the case from the HSE’s legal advisors. She clearly gave detailed consideration to the information supplied by Dr. O’Connor and formed her own opinions about it. The fact that her opinions accorded with Dr. O’Connor’s opinions is hardly surprising, but it is irrelevant.

Having formed the three requisite opinions Dr. Keane was entitled under s. 38(1) of the Health Act, 1947 as amended to order in writing the detention and isolation of the patient in this case in a specified hospital or other place until she gives a certificate that the patient is no longer a source of infection. She duly issued an order in writing dated the 11th of December, 2007 ordering that Ms. N.I. be detained and isolated in a specialised negative pressurised room with Mercy University Hospital until she gives a certificate that the patient is no longer a source of infection.

I have considered the form of the order. It is not a masterpiece of legal drafting in as much as it fails to specify either an address for the proposed detainee, or an address in respect of the specified hospital. Although it was contended by Dr. Keane that the reason why it merely names the patient and does not further describe her was uncertainty as to her address after she took her own discharge from hospital, the evidence establishes that they had a last known address for her, namely Great William O’Brien Street, Blackpool, Cork. That being the case there no reason why she could not have been described in the order as “N.I., recently of Great William O’Brien Street, Blackpool, Cork.” Moreover, no explanation whatever was given for the failure to provide an address for the specified hospital. Notwithstanding these criticisms, I am satisfied that the defects mentioned are not fatal defects. Nobody has seriously contended that, in the circumstances of this case, the order could be construed as relating to anybody other than the patient, or that the specified hospital cannot in fact be located. The order is in writing as required by the statute; it clearly expresses both the legal and factual basis for the order; it is clear in its intended effect; it is signed and dated by Dr. Keane and, as required by section 35 of the Health Act, 1953, it is also signed by a second registered medical practitioner, namely Dr. Margaret O’Sullivan. Accordingly, I am satisfied in all the circumstances that the form of the order was adequate.

A second point is then made by the applicant which has more substance than the first.

Section 38 (2)(b) provides that when an order has been made under s. 38 in relation to a person the medical officer who made the order, referred to as the committing officer, and also any person to whom the duty of acting under s. 38 has been assigned by or with the consent of the Minister and who has been authorised in writing by the committing officer to act in the particular case, may detain the patient.

The applicant correctly contends that no person other than those prescribed in section 38 (2)(b) may detain a person under s. 38. Dr. Keane made the order in this case and was, accordingly, the committing officer. However, she did not personally detain the patient. Rather, Dr. Annette Dillon detained N.I. on 11th December 2007 with the assistance of members of An Garda Síochána. The applicant says that neither Dr. Dillon, nor either of the Gardaí in question, was a person to whom the duty of acting under s. 38 had been assigned by or with the consent of the Minister. Moreover, none of them were persons who had been authorised in writing by the committing officer to act in the particular case. The applicant is correct on both counts.

The applicant makes the further point that Section 38 (2)(c)(i) provides that the person detaining the patient shall, on or before doing so, produce for inspection by the appropriate person his written authorisation from the committing officer, if he is not himself the committing officer. It is contended that compliance with this provision is mandatory and requires production for inspection by “the appropriate person” as defined in s. 38(3) of the detainer’s written authorisation from the committing officer if he is not himself the committing officer. As neither Dr. Dillon, nor the Gardaí, had authorisations in writing from Dr. Keane, they could not have complied with this requirement. Once again the applicant is correct.

Accordingly, although a valid order existed for the detention of the patient pursuant to s. 38 of the Health Act, 1947, as amended, that order was not validly executed in the first instance. Despite the fact that they were physically in possession of the said order, and purportedly served it on the patient, neither Dr. Dillon, nor the Gardaí who accompanied her, were lawfully entitled to detain the patient because they were not persons properly authorised to execute the order. Moreover, they were consequently unable, and therefore did not, comply with the requirement specified in s. 38 (2)(c)(i). In these circumstances their purported detention of the patient at Middleton on the evening of the 11th of December, 2008 was unlawful. Moreover, the patient remained in unlawful detention while she was being conveyed by Garda car to the Mercy University Hospital.

Further criticism is made by the applicant of the manner in which s. 38 (2) (c) (ii) was purportedly complied with. This provision requires the detainer to give to the appropriate person a copy of the order, and a statement in writing of the right to appeal under s. 38 (2)(h). Although it was the subject of controversy under a separate heading, the Court is satisfied that the appropriate person, in the circumstances of this case, was the patient herself. It was contended that the s. 38 order was not properly served on the patient because, since it refers in the body of the order to “the attached report” of Dr. Terry O’Connor dated the 10th of December, 2007, the complete order must be construed as including both the curial document and its intended attachment. The evidence establishes that only the curial document was served. The intended attachment was not served. While I agree that, ideally, the attachment should have been served, I am not satisfied that the failure to do so constituted a breach of the first requirement in s.38 (2)(c)(ii). The patient was made aware in the curial document of the existence of the report of Dr. O’Connor dated the 10th of December, 2007 and of the reliance that was being placed upon it. She was therefore provided with sufficient information to enable her, or her advisers, to request a copy of it, should they wish to.

I am satisfied that Dr. Keane’s letter to the patient of the 11th of December, 2007, which was served on her at the same time as the order, contained a statement in writing of the right to appeal under s. 38 (2)(h) and constituted sufficient compliance with the second requirement in s. 38 (2)(c)(ii).

It was further submitted that before complying with the provisions of section 38 (3) (c) it is necessary that the person detaining the patient be in a position to make a judgement, and that they should actually make a judgement, as to whether the patient “is for any reason unable to act for himself ” (or herself). This is to ascertain in any particular case whether the appropriate person is the patient herself or “the person for the time being in charge of the patient” as referred to at section 38 (3)(c). It was suggested that it is fundamental to the operation of s. 38, having regard to the purpose of that section, that proper and careful consideration be given by the detaining person as to who is the appropriate person within the meaning of the section for the purposes of notification of the right of appeal to the Minister.

The applicant contends that the only evidence with regard to any assessment of N.I.’s mental condition prior to the making of the order was the evidence of Dr. Cooney, Psychiatrist, to the effect that he had advised Dr. O’Connell that N.I. was in a position to consent to medical treatment. That would seem to be correct. The Applicant argues that such evaluation would be required on any occasion where the making of an order under section 38 is contemplated, but particularly in this case having regard to what the first named Respondent already knew of N.I.. Such knowledge included the history with regard to her mental state, the fact that her two children had been taken into care, the fact that she was a foreign national with no family support, the uncertainty with regard to her state of literacy and education, her erratic attitude to the taking of medication, and her refusal to take medication at that stage either for her physical condition or for her depression. It is contended that the failure of Dr. Keane (and her subordinates who were involved in attempting to execute the order) to assess whether there was reason to believe that the patient might be unable to act for herself fundamentally undermines the lawfulness of the detention.

The Court does not consider that there is any substance in this point in the circumstances of this case. The patient was seen by Dr. Cooney at Dr. O’Connor’s request just before Dr. O’Connor wrote to Dr. O’Sullivan on the 10th of December, 2007. Her capacity to take decisions was assessed and she was found to be capable at that point. Moreover, Dr. O’Connor specifically alluded in his letter to the fact that the patient had been reviewed by the psychiatric team and stated that they had concluded that the patient’s main problem was distress due to physical and psychosocial stressors. He further expressed the personal view that she was depressed. As previously stated the Court is satisfied that Dr. Keane considered this letter in detail, and that she subsequently discussed it with Dr. O’Connor. There was nothing specific to trigger any alarm in Dr. Keane’s mind as to the patient’s ability to act for herself at the time she made the detention order. The same comment applies with respect to the involvement of Dr. O’Sullivan and Dr. Dillon, respectively.

The applicant has sought to argue that the irregularities associated with the execution of the s. 38 order that rendered the patient’s initial detention unlawful had the effect of tainting everything that occurred thereafter. According to the applicant the patient has been in continuous unlawful detention from the outset on account of these irregularities. This Court does not agree with that submission. The crucial factor is the existence of a lawful s. 38 order. Although the means by which that order was purportedly executed were unlawful, the failures in that regard would not have operated to invalidate or undermine the lawfulness of the order itself. The order predated in time the unlawful acts on foot of which the patient was detained. Accordingly, the patient’s detention, although initially unlawful, became lawful once she was delivered into the custody of the staff at the Mercy University Hospital who were directly authorised by the s. 38 order to isolate her there in a specialised negatively pressurised room.
The continuing detention – issues as to vires and constitutional justice
It remains to be considered as to whether, having regard to the considerable lapse of time since she was committed to the Mercy University Hospital, the patient remains in lawful detention. It is clear that the Court must look beyond issues of procedural or technical compliance with the enabling statutory provision and adopt the approach of the divisional High Court (Laffoy, Kelly and Geoghegan JJ) in the case of The Application of Gallagher (No. 2) [1996] 3 IR 10. That case concerned an inquiry under Article 40.4.2˚ into the detention of the applicant under s. 2 of the Trial of Lunatics Act, 1883. Giving judgment, Laffoy J. observed at page 31:

“Article 40, s. 4, sub-s. 2 enjoins this Court, upon a complaint being made that a person is being unlawfully detained, to forthwith enquire into the complaint and after giving the person in whose custody he is detained an opportunity to justify the detention, to order the release of such person from such detention unless satisfied that he is being detained in accordance with law. It is well settled that the expression ‘in accordance with law’ in Article 40, s. 4 does not mean simply in accordance with a statutory provision; adopting the words of Henchy J. in King v. Attorney General [1981] I.R. 233 at p. 257, it means
‘without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution . . .’”
In the course of his judgment in the same case Kelly J. said:

“In the instant case, it is accepted that the warrant under which the applicant is held is a good one. Prima facie, therefore, the applicant is in lawful detention and is not entitled to his release. But the mere fact that the warrant under which he is held is in order is not necessarily determinative of the legality of his detention. The Court is authorised in an appropriate case to look behind the warrant which authorises a person’s detention and consider the circumstances under which such person is being held. If such circumstances involve serious breaches of the applicant’s constitutional rights, the detention can be so impaired as to make it unlawful. In the present case, the applicant has chosen to make his complaint under Article 40 and so the Court must now examine his position to see if there have been serious breaches of his constitutional rights so as to entitle him to release.”

Moreover, in his judgment in the same case Geoghegan J. stated (at page 16 of the report) that:

“….it is well established that in appropriate cases the High Court may go behind the face of the documentation and may consider the circumstances under which the applicant is being held. If the conditions under which the applicant was being held involved serious and fundamental breaches of the applicant’s constitutional rights, the detention could be so tainted as to render it unlawful, notwithstanding the apparent validity of his detention on the documentation produced. In such circumstances the applicant would be entitled to an order for his release.”

Accordingly, this Court must now focus on whether the power of detention in the present case is being operated in accordance with principles of constitutional justice. The Court is concerned, in particular, to ascertain whether the detainer is paying sufficient regard to the constitutional and other rights of the patient and whether her rights are being adequately respected, defended and vindicated.
Sub-subarticles 1˚ and 2˚, respectively, of Article 40.3 of the Constitution of Ireland provide:

“1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

Certain of the citizen’s personal rights, such as the right to liberty, are enumerated within the Constitution while other such rights, being un-enumerated personal rights, have been identified by the superior courts. The question whether non – citizens may rely on the personal rights guaranteed by article 40.3 has been considered in a number of cases including The State (Nicolaou) v. Attorney General [1966] I.R. 567; The State (McFadden) v. Governor of Mountjoy Prison (No 1) [1981] I.L.R.M. 113 and In re Article 26 and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. The position is that while non-citizens have been held to be entitled to the benefit of many of the important personal rights guaranteed under the Constitution, there has not been a comprehensive statement of principle from the Supreme Court confirming that non-citizens have that entitlement in the case of every personal right. However, many constitutional lawyers hold the view, with which I am sympathetic, that the personal rights guaranteed under Article 40.3 are “natural”, in the sense of being inherent to human personality and accordingly antecedent to the Constitution. If that is so, it would follow that non-citizens should be entitled to the benefit of them. It is not necessary for me to express a definitive view on this issue for the purposes of this case. I do consider, however, that the following rights must be regarded as constitutionally guaranteed to the patient in this case, namely the right to liberty, the right to bodily integrity, the right to be treated with human dignity, the right to self determination, the right to family life, the right to privacy, the right to litigate and the right to fairness of procedures in the administration of the law.
One of the features of the personal rights guaranteed under the Constitution is that they do not confer absolute entitlements. They cannot do so, for as Kenny J. said in The People v. Shaw [1982] I.R. 1 at p 63:

“There is a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher must prevail. This is the law for the exercise of all three powers of Government and flows from the conception that all three powers must be exercised to promote the common good: see the preamble to the Constitution. The decision on the priority of constitutional rights is to be made by the High Court and, on appeal, by this Court. When a conflict of constitutional rights arises, it must be resolved by having regard to (a ) the terms of the Constitution, (b ) the ethical values which all Christians living in the State acknowledge and accept and (c ) the main tenets of our system of constitutional parliamentary democracy.”

Moreover, Griffin J. in his judgment in the same case stated, at p. 56:

“The existence in a Constitution of certain guaranteed civil, as distinct from natural, fundamental human rights does not mean that a person is entitled to insist on a particular guaranteed right to the exclusion or disregard of another person’s guaranteed right, or of the common good. Indeed, many of the guaranteed personal rights under our Constitution are expressly limited in their application. But even where there is no such express limitation, it is a fundamental canon of construction, as well as being a phenomenon of every legal order, that rights, whether constitutional or merely legal, are prone to come into conflict with one another to such an extent that in particular circumstances one of them must yield right of way to another. If possible, fundamental rights under a Constitution should be given a mutually harmonious application, but when that is not found possible, the hierarchy or priority of the conflicting rights must be examined, both as between themselves and in relation to the general welfare of society. This may involve the toning down or even the putting into temporary abeyance of a particular guaranteed right so that, in a fair and objective way, the more pertinent and important right in a given set of circumstances may be preferred and given application.”

Consistent with this, the guarantees in sub-sub articles 1˚ and 2˚ of Article 40.3 are qualified, respectively, by the phrases ôso far as practicableö and ôas best it mayö. Further, the right of citizens, as human persons, to equality of treatment before the law which is guaranteed in Article 40.1 is expressly qualified by the statement:

“This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

The power of detention contained in s. 38 of the Health Act, 1947 is far reaching indeed. As well as impinging directly on the personal liberty of its subject it has the potential to impinge directly or indirectly upon other personal rights constitutionally guaranteed to that person, e.g. the right to be treated with human dignity, the right to individual privacy and the right to family life, to name but some. It is essential therefore to consider the legislative object of the power in question, the class of persons who may potentially be the subject of it, the general public interest, the duties and obligations upon those who may exercise the power, and the interests and rights of the particular patient in this case.
It is clear to the Court that the primary object of the s. 38 power of detention is to provide a safeguard against the spread of particular infectious diseases amongst the general population by facilitating, where necessary, the compulsory effective isolation of a person who is suffering from such a disease. The expression “infectious disease” is defined in section 2 of the Health Act 1947 as meaning primarily any disease included in regulations under subsection 1 of s. 29 whether absolutely or by definition of a particular stage of such disease. Although many diseases are included in such regulations the Minister has, within the regulations, scheduled only certain of those diseases for the purposes of s. 38. At present these are the diseases listed in Regulation 8 of the Infectious Diseases Regulations, 1981, as amended by regulation 4(4) of The Infectious Diseases (Amendment) (No 3) Regulations, 2003.

The key criterion is the need to ensure “effective” isolation. The section expressly provides that the power may only be invoked in cases where the patient cannot be effectively isolated in their own home. It is implicit in the section that the legislature intended that the power should be invoked sparingly and that it should not be resorted to save where absolutely necessary. It is difficult to conceive of any circumstances where it would be necessary to invoke the power save in the case of patient non co-operation with a proposed regime of isolation. Even in a case where a patient’s home is physically, or otherwise, unsuitable to provide effective isolation, it would be unnecessary to invoke the s. 38 power of detention in the case of a co-operative patient. He or she could simply be admitted to, and isolated within, a hospital or other suitable place on a voluntary basis.

The class of persons who may potentially be the subject of a section 38 detention order is therefore comprised of non co-operative persons suffering from one or more of the infectious diseases listed in Regulation 8 of the Infectious Diseases Regulations, 1981, as amended by regulation 4(4) of The Infectious Diseases (Amendment) (No 3) Regulations, 2003.

As regards the public interest, the diseases listed in Regulation 8 are all very serious diseases. The development of an epidemic or pandemic involving any of them would be a disaster. Tuberculosis is one of the listed diseases. It is clear from the evidence of Dr. O’Connor, and the affidavit of Prof Meijer, that ordinary drug resistant TB represents a significant public health risk in itself. It is moderately contagious and, although not difficult to treat, requires a lengthy period of treatment. It also has a significant mortality incidence. However, in the case of MDR-TB, which the patient in the present case is suspected to have, treatment of the infection is much more difficult, much more protracted, and it has a much higher mortality incidence. Further, and much more sinisterly, incomplete or inconsistent treatment with antibiotics of MDR-TB patients creates a risk of the emergence of XDR-TB which is virtually untreatable. The patient in this case, who is believed to suffer from MDR-TB, has had incomplete or inconsistent treatment of her condition with antibiotics. Prof Meijer characterises the potential spread of a virulent airborne disease such as MDR-TB, and in particular XDR-TB, as being “one of the worst nightmare scenarios for epidemiologists, conjuring up images of numerous TB sanatoria that were common in Europe and the United States prior to the development of antibiotic treatment”. He says that the potential risk to the public from MDR-TB or XDR-TB is very serious, and is significantly more serious than the risk to the public from diseases such as MRSA. The Court is satisfied on the basis of the evidence that it has received that the patient, for so long as she remains infectious, represents a grave danger to the general public unless she effectively isolated. Accordingly, there is a significant public interest dimension to this case.

I now turn to the duties and obligations of a chief medical officer (or a medical officer of health, such as Dr. Keane, performing the functions of a chief medical officer) towards a person who is the subject of an order made under s. 38. As I have said the power of detention provided by s. 38 of the Health Act, 1947 represents a significant impingement upon the constitutional rights of the person against whom it is invoked. There must be due recognition of this at all stages and it is incumbent on the person invoking s. 38 to take positive steps to ensure respect for, and the vindication of, the subject patient’s rights to the greatest extent possible consistent with the need to protect the public against the spread of disease. Regrettably, the Court has been forced to the conclusion, on the evidence that it has heard, that Dr. Keane has focussed primarily on the public health risk and has given little or no thought to how the unfortunate patient’s constitutional rights might be respected or vindicated. The patient had been in detention for almost eleven months when the matter came before this Court, and there was no care plan in place for this patient to ensure the vindication of her rights. Indeed, Dr. Keane had given no thought whatever to it, nor did she think it was her responsibility to ensure that such a plan was put in place. While it is understandable that Dr. Keane would entrust primary care of the patient to Dr. O’Connor and his team now that she is in isolation in a negatively pressurized room at the Mercy University Hospital, Dr. Keane was required to be, and remains, centrally involved. The patient will remain in isolation until she, Dr. Keane, is in a position to certify that the patient is no longer a probable source of infection. Accordingly, she is obliged to stay in close touch with the primary care team and to maintain the case under constant review. Moreover, Dr. Keane is the person who is ultimately responsible for not just for the physical care of the patient but for all aspects of the patient’s welfare. Her responsibility in this regard is an onerous one. She must ensure that the patient’s rights are impinged upon to the very minimum extent necessary. She is required to vigilant and pro-active to ensure that the patient’s rights are respected and vindicated in so far as is possible. Her duty in that regard is all the greater in circumstances where the patient is particularly weak and vulnerable and the statutory provision containing the power of detention is an old one that provides little or nothing in the way of built in safeguards for the protection of the patient’s rights. It is unfortunately the case that s. 38 does not incorporate many of the safeguards that one might reasonably expect to see in a more modern piece of legislation e.g., it does not provide for regular periodic reviews of the patient’s case, or for the provision of an independent advocate for the patient.

The patient in this case is particularly weak and vulnerable. She is believed to have not just one, but two, life- threatening medical conditions, namely full blown AIDS and MDR-TB. She is a foreign national in a foreign land with no family network here and no significant social network here. She faces a deportation order. Her children are in care. Although of normal intelligence she is almost certainly of limited education. While she understands and speaks some English it is not her first language. Her literacy skills, if any, are uncertain. She is detained in a highly controlled environment with limited opportunities for interaction with other persons. Those she does have contact with, with the exception of her children, and her mother who has only recently had an opportunity to visit her, are culturally alien to her. All of her visitors must wear masks, gowns and gloves. Some also wear goggles. There is a security man at her door around the clock. She is sometimes depressed. She continues to refuse treatment and in this respect, and in some other respects from time to time, is not behaving rationally. There is, though it can be put no higher than this at the present time, a question mark over her capacity to take decisions in her own interest. She is presumed to be compos mentis but only on the basis of a limited, and less than wholly satisfactory, psychiatric evaluation. That presumption, like all presumptions, may be capable of being rebutted. There are huge cultural issues at play as well as issues of trust and confidence. The patient unquestionably faces numerous adversities, though some of these are of her own making.

The responsibilities, of which I have spoken, although personal to Dr. Keane, also rest upon the first and second named respondents. Notwithstanding the Court’s criticisms of her for focussing too much on the public health risk and not sufficiently on the rights of the patient, I am satisfied that at all times Dr. Keane acted in good faith, and that she did so within the scope of her job as Director of Public Health for HSE South and Medical Officer of Health for the Counties of Cork and Kerry. The HSE therefore shared, and continue to share, her responsibilities towards the patient and are obliged to support the doctor in her role, not least by providing her with comprehensive and reliable legal advice concerning what to do in the very unusual situation of the s. 38 power needing to be invoked and, where necessary, by providing her with material and administrative assistance.

In the Court’s view, the second named respondent as the physical custodian of the patient has parallel responsibilities with those of the first named respondent in respect of the patient’s non-medical welfare. It goes without saying that it has primary responsibility for her medical welfare.

It is noted that the HSE’s legal advisors were consulted at the outset by Dr. Keane, and that some advice was provided. It is impossible to assess the adequacy of the advice given without further information. However, the evidence establishes that legal assistance was rendered in terms of drafting the order; that there was advice concerning the need to effect adequate service as required by the Act; that there was advice concerning the need to make the patient aware of what was happening in layman’s language; that there was advice concerning the need to ensure that the patient could have access to legal advice if she wanted to avail of it, and advice concerning the need to ensure that the patient was aware of her right to appeal. I find that this advice was by and large complied with either at the time of, or in the immediate aftermath of, the patient’s detention. However, thereafter Dr. Keane and her team, and to a lesser extent those responsible for the patient’s care at the Mercy University Hospital, seem to have adopted the attitude that those boxes were ticked, and there was little appreciation that the obligation to take positive steps to respect and vindicate the rights of the patient was an on-going one. There is nothing in the evidence before me to suggest that legal advice was received concerning the need to the formulate a specific care plan aimed at ensuring respect for and, in so far as practical, the vindication of the patient’s personal rights on an ongoing basis. If such advice was indeed received, it wasn’t acted upon. It was only after some weeks, when contrary to expectations, the patient was continuing to refuse treatment that people became worried at the apparent open-endedness of the situation and the unanticipated spectre that the patient might remain in detention until she dies. This concern provoked the letter of the 18th of January from Dr. Keane to Professor Brendan Drumm, to which I have previously referred, and the subsequent correspondence between senior officials in the HSE and the Department of Health, culminating in Dr. Kevin Kelleher’s suggestion, months later, that the social workers concerned with the patient’s case should revisit with her the possibility of an appeal to the Minister.

The Court has already criticised the absence of a rights based care plan for the patient in this case. Although the various professionals concerned with her welfare are all well disposed towards her, are caring, and are doing their best in a very difficult situation, their approach to her non-medical welfare has been ad hoc and largely unplanned. There have been failures on account of this. To give just one example, the evidence establishes that the patient has from time to time resisted detention, has attempted to escape, has wilfully misbehaved and has not submitted to the exercise of s. 38 powers “in a peaceful and orderly manner”. Yet it has never occurred to anybody, either before or since, to advise the patient of the implications of these behaviours, that each one of them constitutes a criminal offence under s. 38 (4), attracting a potential custodial sentence of up to three months in jail. The Court would ask how, in the absence of this information, it could be contended that the patient’s right to self determination is being respected? To make a proper decision a person has to have all necessary information.

While the patient is aware that she is being forcibly denied her liberty, she is seemingly unaware that her right to freedom of expression within the hospital is restricted by law. Despite the desperateness of her situation, she cannot even shout out in frustration. If she does so, she potentially commits the criminal offence of failing to submit to her isolation “in a peaceful and orderly manner”. Does her right to human dignity not entitle her to be appraised of the full implications of her situation?

A similar comment could be made with respect to section 38 (2)(o) which provides that “force may, if necessary, be used for the purpose of carrying out any provision of this subsection”. There is no evidence that the patient has been advised of this feature of the circumstances in which she is detained. It is possible that if, out of frustration or otherwise she becomes unruly, she could be forcibly restrained. Does she realise this? Has anybody told her?

Now while the Court accepts that it is inherently unlikely that this patient would ever be prosecuted for a s. 38(4) offence, that is not the point. The point is that no one has sat down to work out, or to plan, exactly what information the patient needs to have, how it is to be communicated, how issues of trust and confidence tending to undermine effective communication are to be addressed, what special skills may be necessary to ensure effective advocacy both with and on behalf of the patient, and who is to have responsibility for it. There have been ad hoc efforts by Dr. Dillon, Dr. O’Connor, Dr. Margaret O’Sullivan, and the social workers (particularly Marie Buckley and Mr. Rutherford) but there has been no plan. The multi-disciplinary case conferences provide individual workers with a means of ventilating concerns about aspects of the patient’s welfare and are a good innovation in so far as they go, although the absence of a regular psychiatric input is a matter of some concern. However, nobody seems to be in overall charge of the non-medical facets of the case.

At the end of the day the Court is less concerned with historical failures than with the current situation. Because of the increasing level of concern at the apparently open-endedness of the patient’s detention there has lately been an increase in engagement with the whole question of ensuring respect for, and vindication of, the patient’s rights. This has not happened on any formal or planned basis but largely on an ad hoc basis. Nevertheless it has happened. The question of a possible appeal has been revisited with the patient by Ms. Buckley and Mr. Rutherford. The question of providing a non legal advocate for the patient has been explored and to some extent progressed. The bringing of her mother to Ireland from South Africa has helped in negotiating some of the cultural barriers and has provided the patient with a social and familial contact from within her own culture. Ms. Buckley has, on her own initiative, re-explored with the patient the possibility of obtaining legal advice, though so far to no avail. The very fact that this inquiry has been initiated, and is being supported by the patient’s primary carers is testimony to the new engagement that I have referred to. Accordingly, on balance, I am satisfied that notwithstanding past failures, the patient’s constitutional rights are now being sufficiently respected and vindicated to enable the Court to express the view that her detention is, at this time, lawful. There is, however, room for considerable improvement in terms of the formulation of a specific rights based care plan, and the implementation of a system of regular periodic reviews not just of the patient’s medical situation but of all aspects of her welfare.
The validity of s. 38 having regard to the provisions of the Constitution
Having decided that the patient’s continuing detention is in accordance with an otherwise lawful power of detention, namely s. 38 of the Health Act, 1947 as amended, I must now consider whether that provision is valid or invalid having regard to the provisions of the Constitution?
The Applicant’s Submissions
The applicant contends that s. 38 is invalid having regard to the provisions of the Constitution in as much as it fails to provide sufficient safeguards to ensure that the personal rights of weak and vulnerable persons, such as the patient in this case, are defended and vindicated. The applicant complains specifically about the absence of provision for periodic reviews of the patient’s case, the inadequacy of the existing appeal mechanism, the existence of built in and systemic obstacles rendering it extremely difficult for a weak and vulnerable person to secure vindication of their rights (e.g., no formal mechanisms by means of which the courts can be accessed or by means of which legal representation can be secured), and no provision for the appointment of an independent advocate to promote the rights and defend the interests of weak and vulnerable persons.

The applicant acknowledges that the provision in question enjoys a presumption of constitutionality, by virtue of having been enacted post 1937. Moreover, there is an acceptance of the principles articulated so clearly by Walsh J. in East Donegal Cooperative Livestock Market Limited v. Attorney General [1970] I.R. 317, where he said at p. 341:

“At the same time, …, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”

Notwithstanding this, the applicant contends that s. 38 is so deficient in necessary safeguards that the presumption of constitutionality is to be regarded as having been rebutted. It was submitted that s. 38 is fundamentally deficient in making no provision whatsoever for an ongoing structured review of the patient’s condition and treatment and further, for outside independent review and oversight of the welfare and treatment of the patient and her status as a probable source of infection.
In support of these contentions Counsel for the Applicant has cited a number of cases where either, on the one hand, the absence of statutory safeguards has been deprecated, or, on the other hand, the presence of statutory safeguards has been lauded.

Counsel referred the Court to RT v. Director of the Central Mental Hospital [1995] 2 I.R. 65. This involved a case stated to the Supreme Court as to whether section 207 of the Mental Treatment Act, 1945 was invalid, having regard to the guarantee of personal liberty protected in Article 40.4.1 of the Constitution. In that case an Order had been made under section 207 of the Act of 1945 directing the transfer of the Applicant to the Central Mental Hospital, Dundrum. The Court having conducted an examination of the full circumstances, found that the detention was lawful pursuant to section 207 of the Mental Treatment Act, 1945 but went on to consider whether the section was unconstitutional. Costello P. said the following at pages 78/79 of the report:

“Is s. 207 unconstitutional?
The applicant’s constitutional right to liberty is central to this case. It is to be found in Article 40, s. 4, sub-section 1. This article provides that no citizen shall be deprived of his personal liberty save in accordance with law. This does not mean that the Oireachtas is free to enact any legislation it wishes trenching on the guaranteed right. It is however well established that legislative restrictions on the citizen’s liberty must be in accordance with the fundamental norms of the legal order postulated by the Constitution. (See King v. Attorney General [1981] I.R. 233). These fundamental norms are manifold — that with which this case is concerned is the constitutional requirement that the State should defend and vindicate the citizen’s personal rights, and these include the right to liberty. So, if it can be shown that a law fails to defend and vindicate the right to liberty it infringes a fundamental norm of the legal order postulated by the Constitution and will be invalid as trenching on the rights guaranteed by Article 40, s. 4, sub-section 1.

The right to liberty is, of course, not an absolute right and its exercise is in fact and in many different ways restricted by perfectly valid laws, both common law and statutory. Adjudication on a challenge to restrictive laws will be helped by considering the object and justification advanced in support of the law. It is obvious that if the object of the law is to punish criminal behaviour different considerations will apply than when the impugned law has a totally different object, such as the welfare of the person whose liberty is restricted. The reasons why the Act of 1945 deprives persons suffering from mental disorder of their liberty are perfectly clear. It does so for a number of different and perhaps overlapping reasons — in order to provide for their care and treatment, for their own safety, and for the safety of others. Its object is essentially benign. But this objective does not justify any restriction designed to further it. On the contrary, the State’s duty to protect the citizens rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder. So, it seems to me that the constitutional imperative to which I have referred requires the Oireachtas to be particularly astute when depriving persons suffering from mental disorder of their liberty and that it should ensure that such legislation should contain adequate safeguards against abuse and error in the interests of those whose welfare the legislation is designed to support. And in considering such safeguards regard should be had to the standards set by the Recommendations and Conventions of International Organisations of which this country is a member.”

The judgment then sets out various criticisms of the section taken from a Department of Health Green Paper in which the Department had expressed the opinion that the section was “seriously defective”.
Costello P. listed particular further defects that he could identify, including the following:-

“(4) There are no safeguards to protect the patient against a possible error in the operation of the section. The only professional opinion on the question of the suitability of the Central Mental Hospital is that of the Inspector. There are no procedures for the review of his opinion.
(5) There are serious defects not only in the transfer procedures but also in the provision which enables indefinite detention in the Central Mental Hospital. There is no practical way in which a transferred patient can procure his re-transfer or his liberty or have his continued detention reviewed.

These defects in the statutory procedures have serious legal consequences as they directly impinge on the constitutional right to liberty of temporary patients. Such patients have a right to their liberty, at most, eighteen months after the reception order which restricted their liberty was made. If transferred under the section then they may be detained there lawfully after the expiration of that period for an unlimited time which, as this case eloquently demonstrates, may extend over many years. The defects in the section are such that there are no adequate safeguards against abuse or error both in the making of the transfer order, and in the continuance of the indefinite detention which is permitted by the section. These defects, not only mean that the section falls far short of internationally accepted standards but, in my opinion, render the section unconstitutional because they mean that the State has failed adequately to protect the right to liberty of temporary patients. The best is the enemy of the good. The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered (para. 16.13 of Green Paper). The prolonged search for excellence extending now for over fourteen years has had most serious consequences for the applicant herein.”

For these and the other reasons stated in his judgment the learned President expressed the clear view that s. 207 was unconstitutional, and sent forward a case stated for the opinion of the Supreme Court. However, prior to the matter coming on for hearing the applicant was discharged from the Central Mental Hospital, as a result of which the President withdrew the case stated.
Commenting on the judgment of Costello P. in the R.T. case, in J.H. v. Vincent Russell, Clinical Director of Cavan General Hospital, The HSE and Mental Health Commission (Unreported, High Court, 6th February, 2007), Clarke J. said that the Mental Health Act, 2001 “was the means adopted to address those difficulties” (i.e. those difficulties that Costello P had referred to or identified). Since then the scheme and the provisions of Mental Health Act 2001 have been scrutinised by the High Court in several cases, and in that regard were reviewed in great detail by Charleton J. in the course giving judgment on an inquiry pursuant to Article 40.4.2˚ of the Constitution in a case of T O’D v. Kennedy & Others [2007] 3 IR 689. Having reviewed the scheme of the Act the learned Judge said at p. 699:

“These provisions are exacting and complex. They were designed, however, by the Oireachtas in order to replace the situation whereby it was potentially possible for a person to be certified and detained in a mental hospital and then forgotten. The need for periodic review and renewal, and the independent examination of these conditions is not a mere bureaucratic layer grafted on to the previous law for the treatment of those who are seriously ill and a danger to themselves and others: it is an essential component of the duty of society to maintain the balance between the protection of its interests and the rights of those who are apparently mentally ill.”

Moreover, speaking specifically of s. 4 of the 2001 Act, and the extent to which a mental health tribunal acting under section 18(1) of the 2001 Act should have regard to it, the learned judge said at p. 703/704 of the report:

“Section 4 of the Mental Health Act 2001 infuses the entire of the legislation with an interpretative purpose as well as requiring the personnel administering the Act of 2001 to put the interests of the person to be treated as being paramount, with due regard to those who may be harmed by a decision not to treat that person. I note that s. 4(2) specifically requires that the patient, or proposed patient, should be heard and that his or her rights should be considered in making any decision under the Act of 2001. It may be argued that the principle of audi alteram partem would be implied in any event into s. 18(1) but that, it appears to me, is not of itself a sufficient answer to a specific statutory provision that is designed to bring to the attention of non-legal personnel who are administering a form of detention, the fundamental principles upon which their decision making should pivot. In addition, any possibility that medical people might ignore the rights of a patient to such matters as dignity, bodily integrity, privacy and autonomy are also given prominence under s. 4(3) of the Act of 2001 by requiring these to be addressed. These principles apply to all aspects of patients’ care in this context. I could not hold that a mental health tribunal, which is set up by the Mental Health Commission, itself specifically charged with ensuring that the best interests of mental patients are upheld, would be entitled to make any decision without bearing in mind the interests of the person whose treatment is at issue and the risks of those who may be harmed in consequence. Were it to be the case that a tribunal set up under s. 18 had ignored the rights of such a patient, then this court, on a judicial review application, would have authority to intervene. The Mental Health Tribunal under s. 18 is acting as an integral part of the scheme of protection of patients, and prospective patients, under the Mental Health Act 2001.”

The applicant contends that it is instructive to contrast the regime under the Mental Treatment Act, 1945 so criticised by Costello J., with the new regime under the Mental Health Act, 2001. Her Counsel has submitted that in the light of these cases the Court should regard it as being the law that where an Act of the Oireachtas allows a significant impingement on a person’s right to liberty in the interests of preventing the spread of infectious disease, that power, in order to be consistent with the State’s constitutional guarantees under Article 40.3., must be tempered by the provision within the legislation of appropriate safeguards aimed at ensuring the vindication of the detainees personal rights in so far as is practical.
The Court was further referred to the case of Sean Croke v. Charles Smith & Others (No. 2) [1998] 1 I.R. 101 in which Budd J., having formed the view in the course of an inquiry pursuant to Article 40.4.2˚ of the Constitution, that s. 172 of the Mental Treatment Act, 1945 was invalid having regard to the provisions of the Constitution, forwarded a case stated to the Supreme Court under Article 40.4.3˚. The Supreme Court, in considering the constitutionality of the powers of detention conferred by s. 172 of the Mental Treatment Act, 1945, examined the entire scheme of the Act set out at pages 126 and 127 of the judgment including any safeguards and other protections for the rights of detained persons afforded by the Act. The Supreme Court took the view in Croke v. Smith (No 2) that the section was not constitutionally flawed because of the safeguards contained in the Act, which safeguards were outlined in the course of the Court’s single judgment by Hamilton C.J. The Chief Justice said at p. 131 of the report:

“While it may be desirable that the necessity for the continued detention of the person, in respect of whom a chargeable patient reception order has been made, be subject to automatic review by an independent review board as provided for in the Mental Treatment Act, 1981, which has not, unfortunately, after fifteen years, been brought into force by the Minister, the failure to provide for such review in the Act has not been shown to render the provisions of the Act of 1945, and in particular s. 172 thereof, constitutionally flawed because of the safeguards contained in the Act, which have been outlined in the course of this judgment. If, however, it were to be shown in some future case, that there had been a systematic failure in the existing safeguards, and that the absence of such a system of automatic review was a factor in such failure, that might cause this Court to hold that a person affected by such failure was being deprived of his constitutional rights.”

The Chief Justice further observed at p. 133 that:

“The necessity for the continued detention of a patient, to whom s. 172 of the Act applies, must be regularly reviewed to ensure that he or she is not being unnecessarily detained.

The applicant relies on these passages as further supporting her contention that unless adequate safeguards are incorporated within a piece of legislation that purports to authorise the deprivation of a person’s liberty, that legislation must be regarded as constitutionally flawed.
The Court was also referred to Gooden v. St Otteran’s Hospital [2005] 3 I.R. 617. However, save to the extent that it confirmed the essential paternal character of the legislation under review, namely s. 184 and s. 194 of the Mental Treatment Act, 1945, it seems to be of doubtful precedent value having regard to Hardiman J.’s remark in that case viz:

“I do not regard the present decision as one which would necessarily be helpful in the construction of any statutory power to detain in any other context.”

The Court was also referred to J.B. v. The Mental Health (Criminal Law) Review Board & Ors (Unreported, High Court, Hanna J., 25th July 2008). In that case Hanna J. took the view that s. 13(8) of the Criminal Law (Insanity) Act, 2006, as amended, was also an essentially paternal provision. He stated:

“Such an approach must inform and direct the interpretation of the Act of 2006. The statutory framework is designed to promote the care and well being of the applicant and persons in his position. It is both empowering and protective. The Board must review each case of a person coming within the scope of the Act of 2006 at regular intervals, not more than six months apart. I have already described in brief some of the features of the scheme of the Act. However, it is important to note that the Board is enjoined to have regard to the welfare and safety of the applicant and to the public interest. (See s. 11(2) of the Act of 2006 cited above).”

This is relied upon as being a further example of necessary in-built safeguards, the like of which, the applicant says, are conspicuously absent in the case of the power under s. 38 of the Health Act 1947, as amended.
It was further argued by the applicant that if the reference to “information” in section 38(1) is to be interpreted as embracing material other than clinical information, medical records or test results capable of being independently reviewed by a Chief Medical Officer prior to forming an opinion, the provision in question is fundamentally deficient in as much as that would effectively allow the detention and isolation of a person based only on the opinion of one registered medical practitioner. Moreover, if the Act of 1953 is to be read as requiring no more than the signature of another registered medical practitioner who has not examined the patient, such provision does not in any way cure the aforementioned deficiency.

The applicant says that because it is implicit in section 38 that any authorised detention should only be for the shortest period necessary to protect the public, the failure of the section to provide for regular reviews, or to specify any review period whatsoever, except in circumstances where the patient herself has appealed to the Minister, represents a fundamental flaw. It takes no account of the wide range of potential difficulties or adversities that a weak and vulnerable patient might face in initiating such an appeal. Moreover, the applicant says there is an illogicality inherent in section 38 in as much as when the detainer is dealing with a person who is “for any reason unable to act for himself” he is permitted to serve the order and relevant notices on the person “then in charge of the Applicant”. However, when it comes to a possible appeal to the Minister it is arguable that by virtue of section 38 (2)(h) such an appeal cannot be initiated by the person “then in charge of the Applicant”, and that it can only be initiated by the Applicant himself. It would seem that unless the patient is a child, for whom a specific statutory exception is made, the section does not allow a person other than the patient to initiate the appeal process.

The applicant also contends that the failure of the section, which comprises the entirety of the statutory scheme that empowers the detention and isolation of a person who is a probable source of infection, to make any provision for the entirely foreseeable circumstance of a patient refusing to be tested or treated, represents a further serious flaw.

It was further submitted that, in the event of an appeal to the Minister, section 38 (2)(o) could potentially be used to force a person in the patient’s position to submit to an examination by the Minister’s medical examiner, and that this theoretical possibility might inhibit such a person from availing of the right of appeal in the section, and that this could not be constitutional. (The Court does not consider that the fear raised in this submission represents a tenable or realistic concern, having regard to the East Donegal case, and it has only been included for completeness.)

It was further submitted that there is nothing whatsoever in section 38 to oblige the detainer to provide treatment for a person who is detained and isolated. Section 38(7) does provide that the cost of the maintenance and treatment of a person to whom an Order under this section relates shall be paid by the Health Authority of which the Medical Officer who made the order acts. However, s. 38(7) is an enabling provision. It does not impose a duty on the detainer to provide the detainee with any treatment. It was submitted that section 38 is entirely deficient in this respect and unconstitutional as failing to respect the patient’s rights to life, to bodily integrity and to human dignity.

Finally, the applicant has contended that while it is accepted that the balancing of the rights of the individual and the public interest may result in the curtailment of the individual’s personal rights, in particular circumstances, s. 38 is nevertheless so deficient in terms of the absence of specific provisions for the protection of the patient’s rights, for review of detention, for independent oversight, for treatment, and the provision of a meaningful appeal mechanism, as to render it unconstitutional.
The Third and Fourth Named Respondents’ Submissions
The arguments of the third and fourth named respondents may be summed up as follows:

Section 38 of the Health Act, 1947 enjoys a presumption of constitutionality. It is an aspect of the presumption of constitutionality that public servants will act in accordance with the duties imposed upon them by law. As Walsh J. said in East Donegal Cooperative Livestock Market Limited v. Attorney General [1970] I.R. 317, at p. 341:

“At the same time, …, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”

If a doctor fails to appreciate that element of her duty, the doctor may be criticised, but not the law. The maxim ignorantia juris haud excusat must apply.
Having regard to the presumption of constitutionality that exists with respect to s. 38, the onus lies on the applicant to establish clearly that the section is repugnant to the Constitution.

They refer to the objects of s. 38, and contend that they are essentially benign in nature and that, as in Re Philip Clarke [1950] I.R. 235, the provision is to be regarded as paternal and as designed for the protection of the citizen and the promotion of the common good.

They further contend that the power to detain a person who poses a danger to the public by reason of being a probable source of infection, and who must be isolated but who cannot be isolated at home, is one of the fundamental rights of the State. In support of this they rely on Osheku v. Ireland [1986] I.R. 733, where Gannon J. said at 746:

“There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concorde maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.”

This passage was cited with approval by the Supreme Court in Laurentiu v. Minister for Justice [1999] 4 I.R. 42, 90 and in In Re Article 26 Reference and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. Moreover, detention under s. 38 was an example given by Hardiman J. in Minister for Justice v. Butenas [2008] IESC 9 of the “strictly limited circumstances in which the State is entitled to make provision for the detention of a person, not convicted of a criminal offence, where bail is not an option.”
In the course of their submissions Counsel for the third and fouth named respondents pointed to certain specific features of the s. 38 power as being of importance, and as representing safeguards. They say that the requirement that the Chief Medical Officer should form the requisite opinions is not delegable, although the Chief Medical Officer may form his opinion on the basis of information provided by another registered medical practitioner who has inspected the patient. The amendment effected by s. 35 of the Health Act, 1953 should be interpreted as requiring the opinion as well as the signature of the second registered medical practitioner. In forming that second opinion he/she is entitled to rely on information provided by another registered medical practitioner who could be either the Chief Medical Officer (where he/she had inspected the patient personally) or a third party registered medical practitioner who has inspected the patient. It is pointed out that the requirement for two opinions to support a detention on medical grounds originated in the mental health context. However, since the diagnosis of a physical illness, such as tuberculosis, is usually less subjective or open to divergence than the diagnosis of a psychiatric illness, the requirement of a second opinion in the s. 38 context provides significant additional protection for a proposed detainee.

Moreover, if the basis for the detention ceases, the chief medical officer is required to certify that the detained person is no longer a source of infection. Counsel submits that this is in itself a significant safeguard.

While a more modern piece of legislation would be likely to contain a greater level of safeguards to ensure respect for and vindication of the detainee’s rights, it is contended that there are sufficient safeguards within section 38 to render it constitutional. It was submitted that the appeal process represents another important safeguard for the person detained. Moreover, regardless of any right of appeal she may have under s. 38, she has a right of immediate access to the courts through the mechanism of seeking an enquiry into the legality of her detention under Article 40.4.2˚ of the Constitution, if there is reason to believe that her rights are not being respected, defended or vindicated. And, as this case demonstrates, she does not have to invoke that right herself. It can be invoked on her behalf.

It was very strongly urged that this was the approach adopted by the Supreme Court in Sean Croke v. Charles Smith & Others (No. 2) [1998] 1 I.R. 101 and great reliance was placed on this decision, which they say requires close critical analysis.

An appropriate starting point for the suggested analysis is to consider the section of the judgment entitled “Power of Detention” commencing at p. 125 of the report. The Chief Justice said:

“Whilst the powers of detention conferred by s. 172 of the Act on the persons named in subs. (2) of that section are extensive invalid having regard to the provisions of the Constitution, must have regard to:-
(a) the objectives of the Act and the other provisions thereof;
(b) the safeguards and other protections afforded by the Act; and

(c) the fact that

(i) the powers of detention therein contained relate only to persons in respect of whom a chargeable patient reception order has been made;

(ii) before a chargeable patient reception order can be made in respect of any person, the formalities mandated by ss. 163 and 171 of the Act must be complied with;

(iii) these sub-sections require that before a chargeable patient reception order may be made, an application for such an order must be made in accordance with the provisions of s. 163 of the Act which requires that a registered medical practitioner must examine the patient and certify that he is a person of unsound mind, is a proper person to be taken in charge and detained under care and treatment and an examination of the patient by the resident medical superintendent or other medical officer of the hospital acting on his behalf who before making an order must be satisfied as a result of such examination that the person is of unsound mind and is a proper person to be taken in charge of and detained under care and treatment;

(iv) such person may only be detained while he remains a person of unsound mind and in need of care and treatment;

(v) he or she may be discharged by “proper authority”;

(vi) such proper authority includes the resident medical superintendent of the institution in which the patient is being detained, the Minister for Health, the High Court upon an application in accordance with the provisions of Article 40.4.2 and the President of the High Court in the exercise of his jurisdiction in lunacy matters or by any other judge of the High Court designated by the President thereof to exercise such jurisdiction;

(vii) the resident medical superintendent is obliged by s. 218 of the Act to discharge a patient when he is satisfied that he has recovered and by virtue of the provisions of s. 220 of the Act is entitled to discharge the patient upon the application of any relative or friend of a person detained provided he is satisfied that the person detained will be properly taken care of;

(viii) in accordance with the provisions of s. 222 of the Act the Minister may, if he so thinks fit, by order direct the discharge of a person;

(ix) the powers and discretions given to the resident medical superintendent and the Minister in regard to the discharge of patients must be exercised in accordance with the principles of constitutional justice and are subject to review by the courts in the event of failure to so act.”

Counsel for the third and fourth named respondents submits that the passages relied upon by the applicant have to be understood in the context of the approach just outlined. Moreover, the true significance of the passages relied upon is only to be appreciated within the context of the following more extensive quotation (within which those passages appear). The Chief Justice said at p. 131 et seq:

“While it may be desirable that the necessity for the continued detention of the person, in respect of whom a chargeable patient reception order has been made, be subject to automatic review by an independent review board as provided for in the Mental Treatment Act, 1981, which has not, unfortunately, after fifteen years, been brought into force by the Minister, the failure to provide for such review in the Act has not been shown to render the provisions of the Act of 1945, and in particular s. 172 thereof, constitutionally flawed because of the safeguards contained in the Act, which have been outlined in the course of this judgment. If, however, it were to be shown in some future case, that there had been a systematic failure in the existing safeguards, and that the absence of such a system of automatic review was a factor in such failure, that might cause this Court to hold that a person affected by such failure was being deprived of his constitutional rights.
If they so fail, their decisions are subject to review by the High Court, whether by way of an application for judicial review or by way of a complaint made to the High Court in accordance with the provisions of Article 40.4.2 of the Constitution.

The Court is further satisfied that the detention of a patient does not require automatic review by an independent tribunal because of the obligation placed on a person in charge of a district mental hospital to discharge a patient who has recovered. Inherent in this section is the obligation placed on the resident medical superintendent to regularly and constantly review a patient in order to ensure that he or she has not recovered and is still a person of unsound mind and is a proper person to be detained under care and treatment. If such review is not regularly carried out, in accordance with fair procedures and rendering justice to the patient then the intervention of the court can be sought because of the obligation placed on the resident medical superintendent to exercise the powers conferred on him by the Act in accordance with the principles of constitutional justice.

There is no doubt that the provisions of s. 172 of the Act empowers the persons, set forth in sub-s. (2) thereof, to deprive a person, in respect of whom a chargeable patient reception order has been made, of his liberty.

By virtue of the provisions of Article 40 of the Constitution, the State, however, in its enactments is obliged to have due regard to differences of capacity, physical and moral, and of social function.

The Mental Treatment Act, 1945, was, as stated in the preamble thereto, “An Act to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom . . .”

As stated by the Supreme Court in In re Philip Clarke [1950] I.R. 235, the legislation was “of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally”.

The purpose of s. 172 of the Act was to provide for the detention of persons of unsound mind and certified to be proper persons for detention under care and treatment.

The State, including the Oireachtas, is 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 in its laws is entitled to have due regard to differences of capacity and the particular requirements of citizens, particularly those suffering from incapacity including mental disorders.

Do the provisions of s. 172 of the Act, having regard to the citizen to whom it is applicable, constitute a failure by the Oireachtas to respect and, as far as practicable, defend and vindicate the personal rights of such citizens?

In view of the requirements set forth in ss. 163 and 171, which do not of themselves constitute an attack upon the personal rights of the citizen affected thereby or a failure to defend and vindicate such rights, the Court is satisfied that it has not been established that the provisions of s. 172 constitutes a failure by the Oireachtas to respect and, as far as practicable, to defend and vindicate the right of such citizens affected thereby.

In being so satisfied, the Court has had regard to the presumption of constitutionality which the Act is entitled to enjoy and in particular the presumption that the Oireachtas intended that the proceedings, procedures, discretions and adjudications by the resident medical superintendent, the Inspector of Mental Hospitals and the Minister permitted by the Act are to be conducted in accordance with the principles of constitutional justice and in particular with regard to the principle thereof that no person should be unnecessarily deprived of his liberty even for a short period.

This requirement places a heavy responsibility on these officers to ensure that no person detained pursuant to the provisions of s. 172 of the Act is detained for any period longer than is absolutely necessary for his proper care and treatment and that the safeguards provided for in the Act be stringently enforced. The necessity for the continued detention of a patient, to whom s. 172 of the Act applies, must be regularly reviewed to ensure that he or she is not being unnecessarily detained.

Decisions made in this regard are not decisions made in the administration of justice but the decision makers are obliged to act in accordance with the principles of constitutional justice and to have regard to the constitutional right to liberty.

Consequently, the Court is satisfied that it has not been established that the provisions of s. 172 of the Mental Treatment Act, 1945, are invalid having regard to the provisions of the Constitution and will so answer the question referred to it by the High Court in accordance with the provisions of Article 40.4.3 of Bunreacht na hÉireann.”

It was submitted on behalf of the third and fourth named respondents that, correctly understood, Croke v. Smith (No. 2) decided that, while it was desirable that the detention of a person under the Mental Treatment Act, 1945 be the subject of an automatic review by an independent board the fact that such review was not provided for in the 1945 Act did not render it, and in particular s.172 thereof, unconstitutional.
They contend that the Supreme Court also had regard to the presumption that decisions taken under the Mental Treatment Act, 1945 were to be made in accordance with the principles of natural and constitutional justice and that the decision makers were to have regard to the constitutional right to liberty.

Counsel for the third and fourth named respondents further say that while it must be acknowledged that a person detained under s. 38 is entitled to legal advice, the legislation is not rendered unconstitutional by the failure of it to refer to that entitlement. They cite D.P. v. Governor of the Training Unit [2001] I.R. 493 in support of this proposition. They further argue that a person detained under s. 38 has no entitlement to have their legal representation funded by the State, and cite State (O) v. Daly [1977] I.R. 312 as authority for this.

They further argue that while s. 38 does not expressly provide that the person detained thereunder shall be treated, it is clear from s. 38(7) that the Oireachtas envisaged the treatment of the person detained. Moreover, it is readily acknowledged that any detained person has the right to be provided with necessary care and treatment. Again, relying on D.P. v. Governor of the Training Unit they say the legislation is not rendered unconstitutional by the failure of it to refer to that entitlement. However, and notwithstanding this argument, they say that the applicant lacks locus standi and cannot try to impugn the constitutionality of s. 38 on this specific ground given that Ms. I. has been offered and has refused medical treatment.

Finally, they submit that the provision contained in s. 38 (2)(o) is constitutionally unobjectionable and proportionate having regard to the acute public interest in the avoidance of infection. They accept that the provision is to be construed narrowly, that force can only be resorted to if it is “necessary” to do so “for the purpose of carrying out any provision of [s. 38(2)]”, and that it is implicit that only the minimum force “necessary” will be employed.

Decision of the Court on the constitutional validity of s. 38
Having given detailed consideration to the arguments on both sides, I am satisfied that that the applicant has failed to discharge her burden of proof with respect to the alleged constitutional invalidity of s. 38 of the Health Act, 1947, as amended. I am further satisfied that the arguments in support of the section’s validity put forward by the third and fourth named respondents are correct in law. The section enjoys a presumption of constitutionality. Further, and as an aspect of that, the court must have regard to the presumption that decisions taken under s. 38 will to be made in accordance with the principles of natural and constitutional justice and that the relevant decision makers will have regard to the constitutional right to liberty. The power created by section 38 supports an important public interest objective, namely, it assists in safeguarding against the spread of particular infectious diseases amongst the general population by facilitating, where necessary, the compulsory effective isolation of a person who is suffering from such a disease. I am satisfied that the provision is therefore benign, and that it is of an essentially paternal character.

While it might be desirable that the section should contain more specific safeguards towards the defence and vindication of a detainee’s personal rights, the absence of such safeguards does not, of itself, render the section unconstitutional. A detainee may have recourse at any time to the High Court within the context of Article 40.4.2˚ of the Constitution for the purpose of seeking an inquiry into the lawfulness of his or her detention. The combination of (i) such safeguards as already exist within the section, (ii) the presumption that the section will be operated constitutionally, and (iii) the existence of a readily accessible remedy for the person affected if it is not in fact operated constitutionally, provides an adequate level of protection for the personal rights of detainees. I therefore dismiss the claim of constitutional invalidity.

L v Clinical Director of St Patrick’s Hospital [2010] IEHC 62

JUDGMENT of Mr. Justice Clarke delivered the 11th of March, 2010

1. Introduction
1.1 The intended plaintiff (“Ms. L.”) has in recent years suffered from mental illness from time to time. At varying stages she has been both a voluntary and an involuntary patient, generally under the control of the first named defendant (“the Clinical Director”). In circumstances, which it will be necessary to outline further in the course of this judgment, it currently appears that during one period when Ms. L. was apparently an involuntary patient, the proper procedures necessary to justify her detention as such an involuntary patient had, in a very fundamental way, not been complied with.

1.2 It is in those circumstances that Ms. L. now wishes to bring proceedings for damages arising out of what she claims was her unlawful detention in those circumstances. Because of the provisions of s. 73 of the Mental Health Act 2001 (“the 2001 Act”), Ms. L. is not entitled to bring these proceedings without the leave of this Court. Ms. L. has sought such leave which was opposed by the Clinical Director, but consented to by the Mental Health Commission (“the Commission”). This judgment is directed towards the issues which arose on that application. In those circumstances, it is appropriate to turn first to the provisions of s. 73 of the 2001 Act.

2. Section 73
2.1 As pointed out earlier, proceedings such as those which Ms. L. wishes to bring cannot be instituted without leave of this Court. However, s. 73(1) of the 2001 Act provides that such leave shall not be refused unless this Court is satisfied:-

“(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.”
2.2 Section 73 of the 2001 Act is, in some respects, similar to the former s. 260(1) of the Mental Treatment Act 1945 (“the 1945 Act”), which also provided that proceedings of the relevant type could not be instituted save by leave of this Court. However, s. 260(1) of the 1945 Act provided that such leave should “not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care”.
2.3 It will immediately be seen that there are two significant differences between s. 73(1) of the 2001 Act and s. 260(1) of the 1945 Act. First, s. 73 of the 2001 Act reverses the onus of proof. Under s. 260 it was necessary for the person wishing to initiate proceedings to establish that there were substantial grounds for contending bad faith or lack of reasonable care. Under s. 73 the court is required to give leave unless the court is satisfied that the proceedings are frivolous, vexatious or that there are no reasonable grounds for asserting bad faith or lack of reasonable care.

2.4 Second, it is to be noted that, while s. 260 required the intending plaintiff to show substantial grounds for the contentions which underlie the intended proceedings, s. 73 contains no such requirement.

2.5 However, it seems to me that the jurisprudence of the courts in relation to s. 260 of the 1945 Act remain, potentially, of relevance in a consideration of s. 73 save where that jurisprudence is concerned with those aspects of the relevant sections which are materially different. In particular, the terms “bad faith or without reasonable care” appear in an identical form in both sections.

2.6 On that basis, it seems to me to be clear that the term “without reasonable care” should be interpreted as applying not just to an absence of proper medical care, but also as applying to an obligation to use care in ensuring that persons are not in unlawful custody. For example, in Melly v. Moran & Anor (Unreported, Supreme Court, O’Flaherty J., 28th of May, 1998), the Supreme Court allowed an appeal from a decision of this Court, under s. 260 of the 1945 Act, refusing leave to bring proceedings. It is clear from the judgment of O’Flaherty J. that the Supreme Court was of the view that the facts of the case concerned disclosed a “prima facie want of reasonable care”. The allegation in that case was described by O’Flaherty J. as being to the effect “that there was a want of reasonable care in the filling out of the form by the doctor and by the hospital authorities in accepting it as sufficient”. For the purposes of the current discussion, the precise nature of the alleged want of care is not particularly relevant. However, it is clear that the Supreme Court were satisfied that there was a prima facie basis for alleging substantial grounds of want of care in the procedures relating to the detention of the plaintiff concerned.

2.7 Thus, at the level of principle, it seems clear that it is open to a plaintiff to seek to allege that there was a breach of duty of care on the part of a doctor or hospital arising out of the procedures, followed or not followed in the course of putting in place the necessary measures required to procure the detention of a patient. Any such want of care is, it seems to me, therefore, a type of want of care which came within s. 260 of the 1945 Act and also comes, at the level of principle, within s. 73 of the 2001 Act.

2.8 It is also worthy of some note that the Supreme Court, in Blehein v. The Minister for Health and Children & Ors [2008] IESC 40, determined that s. 260 of the 1945 Act was inconsistent with the Constitution. The basis for that decision was the fact that s. 260 confined a plaintiff to proceedings arising out of a lack of bona fides or a want of reasonable care, which restriction was found by the Supreme Court to be disproportionate. The fact that a similar restriction is to be found in s. 73 must, at least, raise some questions about the constitutional validity of the identical restriction contained in s. 73. However, given that I am satisfied that the sort of claim which Ms. L. wishes to bring in these proceedings comes within the “want of reasonable care” parameters as specified in s. 73, it does not seem to me that the question of the application of the jurisprudence identified in Blehein to the 2001 Act arises on the facts of this case.

2.9 Finally, it should be noted that no suggestion is made in these proceedings that the proceedings are frivolous or vexatious. Neither is there any suggestion on the part of Ms. L. that either of the defendants acted in bad faith. Shorn of those aspects of s. 73, the question which I must ask myself is whether I am satisfied that there are no reasonable grounds for contending that either or both of the defendants acted without reasonable care. This is, of course, something of a double negative. I should grant leave unless I am satisfied of that matter. It follows that leave should be granted, save in cases where it has been demonstrated that there is no reasonable basis for the allegation that any relevant defendant acted without reasonable care. Where, therefore, there is any legitimate basis on which a court might arguably conclude that a relevant defendant had acted without reasonable care, then it follows that leave must be granted.

2.10 Having identified those general principles, it is next appropriate to turn to the specific facts on which Ms. L. wishes to base her case.

3. The Plaintiff’s Case
3.1 Much of the factual basis for the case which Ms. L. wishes to bring does not appear, at this stage, to be in dispute. In order to place those facts in context, it is necessary to say something about the statutory regime now applicable to the detention of persons whom it is considered are in need of psychiatric treatment. Section 14 of the 2001 Act makes provision for admission orders which may be made by a consultant psychiatrist who has carried out an examination of the person concerned, and who is satisfied that that person is suffering from a mental disorder.

3.2 Under s. 15 of the 2001 Act, an admission order authorises the reception, detention and treatment of the patient concerned for a period of not more than twenty one days from the date of the making of the order. Section 15 also provides for a renewal order, being an extension of an original admission order. A renewal order can last initially for a period not exceeding three months. Section 15(3) provides for a further extension of six months and further extensions again not exceeding twelve months. For the purposes of this case, it is important to note that Ms. L. was originally the subject of an admission order in respect of which no complaint is made. She was also the subject of an initial renewal order for a period of three months in respect of which no complaint is made. She was then the subject of a second renewal order for a period of six months, which is at the heart of her complaint.

3.3 In that context, it is next necessary to note that s. 16 requires a consultant psychiatrist, who has made an admission order or a renewal order to send, within twenty four hours, a copy of the relevant admission or renewal order to the Commission and also to notify the patient concerned of the making of the order concerned, together with certain details of the rights of the patient. There is no suggestion that the relevant consultant psychiatrist in this case failed to comply with the obligations set out in s. 16. In particular, it seems clear that the relevant notice was sent to the Commission within the twenty four hour period stipulated in the section.

3.4 Section 17 provides that the Commission, following receipt of a copy of an admission order or a renewal order, should set in place the machinery necessary for the convening and conduct of a tribunal to consider whether the admission or renewal order concerned should be affirmed or revoked. Unfortunately, it is at this point in the process that something went amiss. Subsequent to problems emerging (to which I will subsequently refer), the Commission appointed PriceWaterhouseCoopers to review the facts. On the basis of a report produced by those consultants, it seems that while the renewal order concerned (or more accurately a copy thereof) was received by fax by the Commission with its receipt being logged, the relevant official within the Commission was not informed of that receipt so that none of the machinery for the establishment or progress of the conduct of a Mental Health Tribunal occurred in Ms. L’s case. It is in that context that the Commission accepts that a case has been made out for a want of care in relation to it.

3.5 It would seem that Ms. L. remained in the care of the Clinical Director for the duration of the six month period concerned, notwithstanding the fact that none of the procedures mandated by s. 17 were carried out. In those circumstances it is, to say the least, arguable that Ms. L. was in unlawful detention for at least a significant portion of that period. The problem only came to light when, at or around the expiry of the relevant six month period, it was considered appropriate to make a further renewal order which would, this time, have been for a further period of twelve months. The fact that no tribunal had been constituted to consider Ms. L’s case six months earlier then came to light. In fairness to the Commission it should be recorded that it made arrangements, on an extra statutory basis, for Ms. L. to receive legal advice at that stage. In fact, it would appear that Ms. L. continued receiving treatment on a voluntary basis for some time thereafter.

3.6 It is against that background that Ms. L. asserts that the Clinical Director (or those for whom the Clinical Director may be vicariously liable), were guilty of a want of care. In that regard reliance is placed on the fact that the Clinical Director or a psychiatrist working with the Clinical Director in the same institution, together with other senior administrative staff, would, in the ordinary way, have been involved in the process of the tribunal had it been set up. Section 17(1)(c) of the 2001 Act requires the Commission, once a tribunal is established, to nominate a member of a panel of consultant psychiatrists established under s. 33(3)(b) of the 2001 Act to examine the patient concerned, interview the consultant psychiatrist responsible for the care and treatment of the patient and review the records relating the patient for the purposes of reporting on the mental condition of the relevant patient. Thus, it is argued on behalf of Ms. L. that the Clinical Director or other senior staff within the relevant institution ought to expect to be required to facilitate the examination of a patient who is detained and being treated by that institution, ought in addition be interviewed by the nominated consultant psychiatrist, and ought be required to facilitate the nominated psychiatrist by making relevant medical records available to that psychiatrist. It is argued that it ought to have become clear to senior staff at the institution concerned that no Mental Health Tribunal had been established when none of those items actually occurred. In addition, s. 18 requires that notice in writing of the decision of a tribunal should be given to, amongst others, the consultant psychiatrist responsible for the care and treatment of the patient concerned. It is further argued that the Clinical Director or his senior staff ought to have become aware that no tribunal had, in fact, taken place when no notice of the result of the tribunal’s considerations was received. Certain other provisions of the legislation are relied on which it is unnecessary to specify in any detail here.

3.7 In summary, the case made on behalf of Ms. L. is to the effect that there is a duty of care on a Clinical Director who is detaining a patient as a result of an admission or renewal order. That duty of care is said to extend to circumstances where the Clinical Director, or those for whose actions the Clinical Director may be responsible, or other senior staff of the relevant institution, could be said to be in a situation where they knew or ought to have known that there was a problem concerning the continued validity of the detention of the patient concerned. It is not, as I understand it, Ms. L’s case that there is any necessarily pro-active obligation on the Clinical Director or his staff. Rather it is said that the complete absence of any of the expected interaction with the Clinical Director or his staff should have alerted those persons to the fact that there was a problem. In those circumstances, it is argued that there was a want of care which contributed to what is said to have been the unlawful detention of Ms. L.. In those circumstances it is further said that Ms. L. is entitled to damages. Against that it is next appropriate to turn to the case made on behalf of the Clinical Director.

4. The Clinical Director’s Case
4.1 It should be noted immediately that no case is made on behalf of Ms. L. to the effect that she received anything other than fully appropriate medical care while being treated, whether as a voluntary or an involuntary patient, by the Clinical Director and other staff of the relevant institution. The case for want of care is clearly confined to the procedural and administrative matters to which I have referred.

4.2 Counsel for the Clinical Director noted, quite correctly, that there was no suggestion to the effect that any of the obligations under the 2001 Act which expressly lie on the Clinical Director or other staff of the institution were breached. No criticism is made of the original admission order or the renewal orders in themselves. No suggestion is made that there was a failure on the part of the institution to notify the Commission. So far as s. 17 and s. 18 are concerned it is pointed out, correctly so far as it goes, that the express statutory obligations to be found in those sections lie on the Commission or a tribunal established by the Commission. Those statutory provisions do not place any direct obligation on the Clinical Director or staff of the institution concerned, save an obligation to co-operate.

4.3 In those circumstances, it is said that there could be no basis for maintaining a claim based on want of care as against the Clinical Director. Rhetorically, counsel asked what could the Clinical Director have done? At what point should the Clinical Director have acted? Attention was drawn, in that context, to the fact that the relevant provisions of the 2001 Act (s. 18, subs. (2) and (4)) allow a period of between 21 and 49 days for the making of a decision by a tribunal. At what point, counsel queried, would an obligation fall on the Clinical Director or other relevant staff to raise the matter?

4.4 In those circumstances it is suggested that there are no reasonable grounds for contending that the Clinical Director acted without reasonable care.

5. Analysis
5.1 It is important to emphasise that I am not, at this stage, dealing with the merits of the proceedings. Rather, for the reasons which I have set out, I am concerned solely with the question of whether it has been established on behalf of the Clinical Director that there are no reasonable grounds for contending that the Clinical Director acted without reasonable care.

5.2 In substance the real issue between the parties, on this application, concerns the duty of care. It is asserted on behalf of Ms. L. that a Clinical Director or relevant senior staff have a duty of care to take action when circumstances arise which ought bring their attention to the fact that there is a problem with the validity of a relevant patient’s detention. It was accepted on behalf of the Clinical Director that there might well be a liability in circumstances where relevant staff were actually aware of such a problem. However, it is said that no such liability can arise where the only case which can be made is that relevant staff ought to have been so aware.

5.3 I am afraid I cannot agree. It is not for me on this application to reach any final determination as to the extent of the duty of care which lies on a Clinical Director or other relevant senior staff. Rather, I have to determine at this stage whether there is no reasonable basis or grounds for the contentions made on behalf of Ms. L.. The precise extent of the duty of care, if any, which may lie on a Clinical Director or relevant senior staff in circumstances where it might be said that they ought to have known that there had not been a tribunal (or any other circumstances which might render continued detention invalid) is a matter of legitimate debate. That there was no contact by the Commission or a tribunal which contact, it might be argued, could reasonably have been expected in circumstances where a tribunal had been constituted and proceeded in an orderly fashion, is not disputed as a fact. A consideration of the existence of any such duty of care is a matter for the trial. At this stage I should confine myself to finding that it is arguable that a duty of care along the lines submitted on behalf of Ms. L. exists. It certainly cannot be said that there are no reasonable grounds for asserting that such a duty of care does exist.

5.4 If such a duty of care is held to exist then there is, in my view, a credible factual basis put before the court on which it would be open to the court to conclude that any such duty had been breached.

5.5 There would, of course, be other issues which might well arise at the trial. There is the fact that Ms. L. was apparently happy to continue as a voluntary patient when the problem was discovered. However, it seems to me that such matters are likely to fall in to a similar category to the facts, analysed by O’Flaherty J. in Bailey v. Gallagher [1966] 2 I.L.R.M. 433, which were deemed to be important factors in the assessment of damages if the action is allowed to proceed. The very brief period of time during which it might be said that the plaintiff in that case was in unlawful detention being the fact in point. If, however, Ms. L. can persuade the trial court that a duty of care along the lines asserted exists and that it has been breached, there can be little doubt but that Ms. L. would be entitled to some damages.

5.6 Before concluding I should also note that the Commission made submissions to the Court in favour of leave being granted as against the Clinical Director. There can be little doubt but that the Commission has an interest in seeking to have the Clinical Director “share the burden” of any liability that might be established in favour of Ms. L.. In the event that both the Commission and the Clinical Director are found to have been in breach of duty, then it will obviously be for the trial court to determine, not only the amount of damages to which Ms. L. should be entitled, but how those damages are to be dealt with in the sense of any relevant contribution or indemnity as and between the Commission and the Clinical Director. Those matters are again issues which can only be properly be dealt with at the trial.

6. Conclusions
6.1 For the reasons which I have sought to analyse I am, therefore, satisfied that it has not been established that there are no reasonable grounds for suggesting that the Clinical Director and those for whom he may be responsible acted without reasonable care.

6.2 It follows that leave should be granted.

F v Clinical Director of Our Lady’s Hospital

[2010] IEHC 243

JUDGMENT of Mr. Justice Michael Peart delivered on the 4th day of June, 2010

The applicant is a thirty-six year old man who, it is accepted by all concerned, suffers from a serious mental disorder, namely, treatment-resistant Schizophrenia, with prominent and negative symptoms.

On 29th August, 2007, he admitted himself as a voluntary patient to St. Brigid’s Hospital, Ardee, from where he was later transferred to Our Lady’s Hospital, Navan. For much of the time since that date, though not entirely, the applicant as remained at Our Lady’s Hospital as a voluntary patient. He has never sought to leave that hospital or refused any treatment recommended, such that the provisions of sections 23 and 24 of the Mental Health Act 2001, were required to be invoked in order to admit him on an involuntary basis. In due course, I will set out details of what orders have, from time to time, been made, renewed and, on occasions, revoked, because that history gives a valuable context for the present application.

However, what gives rise to the present application is that on 6th August, 2009, the status of the applicant was changed from voluntary to involuntary, not by the invocation of sections 23 and 24 of the Act, but rather, by his treating psychiatrist discharging him even though he had not recovered, and then immediately thereafter, arranging the he be detained as an involuntary patient by way of an Admission Order under s. 14 of the Act.

His consultant psychiatrist at the approved centre, Dr. Rutledge, had, prior to 6th August, 2009, formed the view that the applicant was so seriously ill that he required psychiatric treatment in a specialist forensic hospital under conditions of medium security, such as exist at the Central Mental Hospital (“CMH”). It would appear that the medical view is that such treatment, in order to be appropriately administered, requires that the patient be an involuntary patient, and not a voluntary patient. That is the opinion of Dr. Rutledge and it is a view which has been expressed also by certain responsible consultant psychiatrists whose evidence has been available to Mental Health Tribunals which have, from time to time, reviewed Admission Orders and Renewal Orders made in respect of the applicant, as will appear hereunder.

There is a suggestion also made by the applicant that it is the policy of the CMH that only patients who are detained on an involuntary basis may, following a transfer to the CMH, avail of the specialist facilities and treatment there, which has been recommended for the applicant by, inter alios, Dr. Rutledge, and which he is willing to undergo there, but on a voluntary basis.

It would be helpful at this stage to refer to a report by Dr. Rutledge on the applicant’s mental state, which she prepared on 18th August, 2008 (almost one year prior to 6th August, 2009). I do so in order to provide a context for consideration of the present application by way of judicial review where the applicant is seeking to quash the Admission Order made on 6th August, 2009, and the Renewal Order made subsequently on 27th August, 2009, and is seeking certain declaratory reliefs in relation to the alteration of his status from voluntary to involuntary.

In her report on the applicant’s mental state, on 18th August, 2008, Dr. Rutledge stated the following:

“[The applicant] was dishevelled. He remained isolated and withdrawn on the ward. He had prominent negative symptoms of schizophrenia with apathy and amotivation and avolition. He displayed irritability at times. If he is stressed in any way, he can become irritable and sensitive to personal slights.
His mood objectively and subjectively is euthymic with no ideas of suicide or suicidal intent.

His mental state was guarded. He denied the presence of auditory hallucinations. He continued to hold a fixed delusional system relating to the ultimate and absolute psychiatrist whom he would like to harm. He also held to the delusional belief of the significance of particular Euro Millions Lottery numbers.

He discussed his fixed delusion of the ultimate psychiatrist being Daniel Wayne Ivory Rodriges. He told me that it just sort of clicked and came to him over a period of two weeks. When I asked had he thoughts of harming himself, this ultimate psychiatrist, he said, ‘there is no point; he can’t learn, it’s impossible, he has a computer mind, he obeys three laws of robotics’.

In relation to insight, he told me that he was ‘symbiot’. A symbiot, he explained, is ‘when one or two organisms work to mutual advantage, when a heart and liver work together to keep one alive’. He told me he didn’t believe that he needed to be in hospital. He said he had never been unwell except for when he had meningitis as a young child, and he also had ear and eye problems as a child. In relation to the medication, he told me that it helped him to get a good night’s sleep, but it has no benefit other than that.”

Of further benefit is Dr. Rutledge’s opinion, following a HCR-20 Risk Assessment, which she carried out on 31st July, 2009, for the purpose of a report dated 18th August, 2009.
In her report on that occasion, she stated the following:

1. [The applicant] suffers from the severe mental illness of chronic paranoid schizophrenia, characterised by a delusional belief system which incorporates his treating consultant.
2. In my opinion, [the applicant] suffers from a mental illness within the meaning of the Mental Health 2001.

3. There is ongoing evidence of paranoid ideation, thought disorder and lack of insight into his condition. The severity of his mental illness has been such that, in the past, he has attempted to mutilate his eye in response to a belief that there was a camera in his brain. He has assaulted a previous treating consultant and he has expressed ongoing homicidal ideation towards the ‘ultimate and absolute psychiatrist’.

4. His chronic paranoid schizophrenia is complicated by misuse of alcohol and substance abuse.

5. At the time of this report, [the applicant] scored 9/10 on the clinical items in his HCR Risk Assessment. This indicates that his illness remains untreated and it is likely that he continues to hold false beliefs on which he might act dangerously on, if in an open ward or in the community. This is despite regular supervision of medication and use of Clozapine.

6. It is my opinion that [the applicant’s] mental illness is of a nature and degree which makes it appropriate for him to receive medical treatment in hospital for the protection of others from serious harm and for his own health and safety, and that such treatment cannot be provided unless he remains detained under the Mental Health Act 2001.

7. Given the level of risk that [the applicant] represents, it is my opinion that his mental illness is of a nature and degree which makes it appropriate for him to receive psychiatric treatment in a specialist forensic hospital under conditions of medium security, such as pertain to the Central Mental Hospital, for the protection of others from some serious harm and to allow him access to the specialist forensic care which he requires.” [My emphasis]

The applicant’s solicitor, Mr. Anthony Carmody, was appointed by the Mental Health Commission as the applicant’s legal representative for the purpose of the review hearing before the Mental Health Tribunal.
Prior to that hearing, the applicant instructed Mr. Carmody that he, at all times, wished to be a patient at Our Lady’s Hospital, Navan, on a voluntary basis, and of his own choice, rather than as an involuntary patient detained in hospital. Nevertheless, in spit of the submission that the procedure by which the applicant had been deprived of his voluntary status was unlawful, the Tribunal affirmed the Admission Order. In its decision, the Tribunal stated the following:

“On 6th August, 2009, [the applicant] was discharged from the approved centre to the Emergency Department of Our Lady’s Hospital. A Discharge Summary Sheet was completed and a copy of this forwarded to [the applicant’s] GP.
Dr. Rutledge told the Tribunal that, although his stay in hospital was benefiting his condition, [the applicant] needs specialist treatment in the CMH. The CMH will only admit involuntary patients. Dr. Rutledge was unable to invoke sections 23/24 as [the applicant] had not expressed a wish to leave the approved centre. This was confirmed to the Tribunal by Mr. Carmody [the applicant’s] legal representative, and also by [the applicant] himself. [The applicant] has no desire to leave and confirmed that if the order was revoked, he would remain. It is noted that negative symptoms of [the applicant’s] condition include apathy and avolition. She said that he might well stay on for a period of 10 years, he is so passively compliant. She gave evidence of [the applicant’s] mental illness which has been diagnosed as treatment resistant schizophrenia. His underlying condition has not changed since admission, although some symptoms have eased. She is very concerned about the risk [the applicant] poses to others. The Tribunal noted the forensic reports of Dr. Mohan, a forensic psychiatrist in the CMH, and notes his conclusions. Following a period of leave in April (which lasted a number of hours), Dr. Mohan wrote to the approved centre on 29/04/09 and recommended against any further leave, such were his concerns. The Tribunal noted the opinion of Dr. O’Keeffe who echoed these concerns in her s. 17 report and stated that, in her opinion [the applicant] suffers from a mental disorder within the meaning of s. 3.1 and s. 3.1.b. Evidence was given of the benefit [the applicant] has had to date from treatment and that he requires specialist treatment in the CMH.

It is clear to this Tribunal, from the evidence presented, that [the applicant] has a mental disorder within the meaning of that term in both s. 3.1.a and s. 3.1.b It is also clear to the Tribunal that because of [the applicant’s] apathy, he would likely stay on in hospital for an indefinite period without seeking to leave. It is clear that Dr. Rutledge had, at all times, [the applicant’s] best interests in mind. She said the only option available to her was to discharge [the applicant] and have him readmitted in the usual manner. It is noted that if [the applicant] was left as a voluntary patient, he would not be afforded the protection of the MHA and the provision for regular reviews contained therein. It is noted that he remained in hospital because of his apathy and avolition which are negative symptoms of his condition. In his best interests, Dr. Rutledge discharged him and arranged for an authorised officer to complete the application form. This seemed to be the appropriate action to take in the circumstances. Accordingly, this Tribunal is satisfied that the statutory provisions have been complied with. As noted above, the Tribunal finds that [the applicant] continues to suffer from a mental disorder within the meaning of s. 3.1.a and 3.1.b MHA. Accordingly, the Order is hereby affirmed.”

As can be seen, the applicant has indicated that he wishes to remain as a voluntary patient and has expressed no wish to leave Our Lady’s Hospital, save that the Court is informed that he is perfectly willing to be transferred to the CMH and to undergo the recommended treatment there. However, he wishes to do so as a voluntary patient. He accepts that he suffers from a serious mental disorder and accepts that he needs the treatment recommended.
In fact, the applicant has sworn an affidavit in these proceedings to which I have not yet referred, and I should do so. While Mr. Carmody’s grounding affidavit was sworn on 19th October, 2009, so that this application could be moved, the applicant himself swore an affidavit on 24th December, 2009.

In his said affidavit, the applicant states that Mr. Carmody has acted for him since September 2007, and that he has read Mr. Carmody’s affidavit and believes that it accurately sets out the relevant events since his admission to hospital in September 2007. He goes on to say that the statements of opposition and affidavits filed on behalf of the respondents in this case have also been explained to him. He then goes on to say that he knows that his status was changed from voluntary patient to involuntary patient in August 2009, but that he wishes to remain a voluntary patient and that he has at all times cooperated with hospital staff and does not think that he should be detained as an involuntary patient.

He states that, having discussed these issues with Mr. Carmody, he has instructed him to bring the present application.

At paragraphs 5 and 6 of his affidavit, he states the following:

“5. I am happy to remain in the hospital as a voluntary patient. I am also aware that if I am a voluntary patient and if I try to leave, that they can keep me in the hospital as an involuntary patient. At different times since I first came into hospital, I have been an involuntary and a voluntary patient. When I am a voluntary patient, I have more freedom to come and go on the ward, and I can go to the shops and around the hospital grounds o my own, which I enjoy. Each time that I have been allowed off the ward, I have come back; I have never attempted to leave the hospital without permission and I have always come back on time. When I am an involuntary patient, I am not allowed off the ward.
6. I would like, at some stage, to return home, however, I have always done what I have been asked by the hospital staff which includes coming back from my leaves and taking medication. I am well aware that if I did not, I would be made an involuntary patient and lose my off-ward leave.” [My emphasis]

Previous history
I refer to the fact that the applicant has stated in paragraph 5 that, at various times since he first was admitted to hospital as a voluntary patient, he has been an involuntary and a voluntary patient. I will set out some of that history and can do so from what is stated in that regard in the affidavit of Mr. Carmody.

1. On 29th August, 2007, the applicant admitted himself to St. Brigid’s Hospital, Ardee, County Louth, as a voluntary patient. Two weeks later, his treating doctors sought to change his status from voluntary patient to involuntary because they regarded this as necessary in order to facilitate his transfer to the CMH. The method adopted to achieve this change in status was to invoke the provisions of sections 23 and 24 of the Mental Health Act 2001, on 10th September, 2007. In a report to the Tribunal, Dr. Siddique, a consultant psychiatrist in St. Brigid’s Hospital, expressed the view that in his “professional opinion, this patient needs to be in hospital as an involuntary patient and needs to be transferred to the Central Mental Hospital as soon as possible for further management of risk”. However, the Tribunal subsequently revoked the Admission Order made on the basis that the applicant had never sought to discharge himself from the hospital. Mr. Carmody has exhibited the documentation relating to that procedure, including the decision of the Tribunal. The applicant remained at the hospital as a voluntary patient until the events described in the following paragraph.

2. On 8th October, 2007, an Admission Order under s. 14 of the Act was signed which changed his status from voluntary patient to involuntary patient. That Order followed the signing of an application for a recommendation for involuntary admission by the applicant’s mother on that date. That recommendation was signed by General Practitioner and it led to the signing of an Admission Order. It is clear from the available documentation that on the same date, a Notice to Transfer the applicant to Our Lady’s Hospital, Navan, was also signed, and that on the following day, 9th October, 2007, a further Notice to Transfer the applicant to the CMH was signed. Clearly, the intention was that his status to involuntary patient was so that he could be transferred to CMH. In the Proposal to Transfer to the Central Mental Hospital dated 9th October, 2007, the reason given is that the applicant “needs treatment in forensic setting, given the level of ongoing risk”. While the applicant was duly transferred to Our Lady’s Hospital, Navan, at this point, he was not, and in fact, has never been transferred to CMH, even though all relevant professionals are convinced that the treatment which he needs, and presumably needs as soon as possible, is available only in the forensic setting of the CMH.

3. A Renewal Order issued on 25th October, 2007, which became the subject of a review by a Mental Health Tribunal on 14th November, 2007. This Renewal Order was revoked. In its decision, the Tribunal expressed itself as satisfied that the applicant was suffering from a mental disorder within the meaning of s. 3(b) of the Act, but went on to state that, “the patient, however, has expressed an intention through his legal adviser that he is willing to remain in the approved centre as a voluntary patient”.

4. On 30th May, 2008, the applicant’s mother made a further application for a recommendation under s. 9 of the Act in a further attempt to change applicant’s status from voluntary to involuntary, following which an Admission Order was signed. The opinion of the consultant psychiatrist who signed that Admission Order on 30th May, 2008, was that the applicant “suffers with a mental disorder with delusional beliefs about psychiatrists he is responding to, and hallucinations. He poses a long-term unpredictable risk of violence and does not believe that he is being voluntarily detained”. Again, however, this Order was revoked by a Mental Health Tribunal on 19th June, 2008, as the procedures adopted were inconsistent with the Act, as, again, the Tribunal was of the view that, as the applicant was in the hospital as a voluntary patient, the only basis on which his status could be changed to involuntary was by the invocation of the procedures under sections 23 and 24 of the Act, if the applicant attempted to leave the hospital. It had been conceded by a member of the hospital staff at the review hearing that the applicant had never been actually discharged from the hospital prior to the making of the Admission Order.

5. On 4th July, 2008, at 10.27am, an application to a registered medical practitioner for a recommendation for involuntary admission was signed by an authorised officer, namely, John Kelly of the HSE Dublin North East, and he stated at that time that the reason was that “the above named person appears to be suffering from a mental disorder and requires hospitalisation”. Nevertheless, he had been technically discharged so that the process for involuntary admission could be commenced. He stated also that the reason he was seeking the recommendation was that there was no family member available to make the application. Half an hour later, at 10.55am, that recommendation was made by Dr. Jamal of Our Lady’s Hospital, Navan, and at 12.00 noon that day, a s. 14 Admission Order was signed, the reasons being stated as that the applicant “suffers from a mental disorder as defined under the Mental Health Act, and requires treatment in an approved centre”. According to the note of the review hearing before the Tribunal on 24th July, 2008, the consultant psychiatrist responsible for the care and treatment of the applicant stated, inter alia, that the status of the applicant prior to the Admission Order was involuntary in al but name since the applicant knew that if he tried to leave, he would be admitted under the s. 23/24 procedure.

According to the summary of the proceedings at the Tribunal which was prepared by Mr. Carmody afterwards, the consultant psychiatrist confirmed that it was not his intention at that time to transfer the applicant to the CMH, and that other methods of treatment could be tried first, and, when asked, stated that none of the proposed treatments required that the applicant be an involuntary patient. It was also accepted at that hearing that the applicant had not attempted to leave Our Lady’s Hospital. However, on 24th July, 2008, the Mental Health Tribunal affirmed that Admission Order, being of the view that the applicant was suffering from a mental disorder and, as appears from its decision:

“The Tribunal accepts that the treatment required by the patient can only be actioned (?) on an involuntary patient. Further, the best interests of the patient would be served by the patient remaining as an involuntary patient.”
That decision went on to state:
“In relation to the methodology of which the patient became an involuntary patient, the Tribunal accepts that the relevant and appropriate provisions of section 9 were complied with and were enacted in the best interests of the patient.”
6. Also, on 24th July, 2008, a Renewal Order for three months was signed which, in due course, became the subject of a review hearing before a Mental Health Tribunal on 12th August, 2008. The Renewal Order was affirmed. According to the note of this hearing prepared by Mr. Camody, the evidence was that the applicant continued to pose a possible long-term and unpredictable risk of violence to doctors, and that if treatment failed, this risk could broaden to other persons. It was accepted that the applicant was compliant as an in-patient and had not attempted to leave, and according to Mr. Carmody’s note, it was accepted also that the treatment then being given to the applicant could be given as a voluntary patient. However, this note goes on to state that the consultant psychiatrist responsible stated also that:
“If [the applicant] was to be detained as a voluntary patient, it would affect his treatment because they could not immediately invoke a transfer application to CMH and that [the applicant] would probably have to go to CMH to avail of other therapies, as a voluntary patient he could not be transferred.”
According to this note also, Mr. Carmody made submissions to the Tribunal to the effect that the applicant was willing to remaining the hospital as a voluntary patient and that the consultant psychiatrist had accepted in his evidence that the applicant had never tried to leave the hospital while a voluntary patient, and that it was also accepted that his current treatment plan could be administered as a voluntary patient.
It would appear that Mr. Carmody submitted also that it was therefore appropriate to revoke the Renewal Order since it was inappropriate that the applicant should be made the subject of involuntary admission simply to allow for the possibility that he might be transferred to the CMH.

It would appear that the view was taken that while the applicant had not made any attempt to leave, he nevertheless posed a sufficient level of risk to justify his admission as an involuntary patient. The decision of the Tribunal refers to the fact that all the reports before the Tribunal and the evidence given here have been considered and a conclusion was reached that it was in the applicant’s best interests to remain as an involuntary patient, the reasons being that he was suffering from treatment-resistant chronic schizophrenia with a propensity to violence, is on a combination of medication which will require six to eight weeks to monitor before being able to deem this treatment is successful, and that, “he currently remains insight-less, and according to his responsible consultant psychiatrist, still poses a long-term and unpredictable risk of violence”.

7. On 30th September, 2008, a proposal to transfer the applicant to the CMH was issued and on 13th October, 2008, that transfer was duly authorised by a Mental Health Tribunal following a hearing, after which the Tribunal expressed itself as satisfied that it was in the applicant’s best interests that he be transferred to the CMH. Thereafter, the applicant instructed Mr. Carmody to appeal this decision to the Circuit Court and an appeal was lodged. However, on 27th November, 2008, the applicant instructed him to withdraw that appeal.

8. On 23rd October, 2008, a further Renewal Order for six months was signed, and on 3rd November, 2008, a replacement Renewal Order was signed. Each of these was affirmed by a Mental Health Tribunal, on 11th November, 2008. In its decision, the Tribunal was satisfied on the evidence adduced that the applicant was suffering from a mental disorder, as defined, and, having heard the evidence of the risk which it was considered that he posed to both himself and to others, and having been informed of the need that the applicant receive treatment at CMH – treatment which cannot be given to him at Our Lady’s Hospital – the orders were renewed. It could, perhaps, be noted that in his note of what occurred at this review hearing, Mr. Carmody has stated that in his evidence, the responsible consultant psychiatrist confirmed that Our Lady’s Hospital does not have facilities needed to treat the applicant, that the longer he stays there, he will not improve and will become institutionalised, and that in CMH he would have a more structured environment and treatment and that this will be necessary for his long-term progress. It appears that it was stated also that Our Lady’s Hospital can prevent him deteriorating, but not to improve. He will, apparently, not improve simply by taking medication, and for any material improvement to occur, he needs to be in the CMH.

9. Even though these orders were renewed on 11th November, 2008, and the applicant’s transfer to the CMH had already been authorised, and even though all relevant professionals were clearly of the view that the applicant needed to receive treatment at the CMH and would not improve until this occurred, the applicant had not been transferred to the CMH by 23rd April, 2009, when a further Renewal Order was signed by the responsible consultant psychiatrist. However, when that order came before the Mental Health Tribunal for a review on 12th May, 2009, the Tribunal decided that as the period of renewal under that order exceeded (by one day, through a clerical error) the permissible twelve-month period, it had to be revoked. The applicant, through his solicitor at the review hearing, had confirmed that in the event of the order being revoked, he was willing to remain in Our Lady’s Hospital as a voluntary patient.

10. Following the revocation of that Admission Order, the applicant, in fact, remained at Our Lady’s Hospital until he was “discharged” to the Emergency Department of that hospital on 6th August, 2009. The Discharge Summary Form, which was signed by Dr. Rutledge, states, firstly, that he “remains psychotic, shown little improvement on Clozapine and Clozapine Augmentatin with Aripiprazole. Patient discharged on legal advice”. [My emphasis]

Two paragraphs later, that form states, “Lately, unwell with paranoid delusion intent of harm to others and no insight”. Following that “discharge, he was speedily made the subject of an Admission Order of that date, as described at the outset of this judgment. A Renewal Order was made on 27th August, 2009, and that was affirmed by a Mental Health Tribunal on 8th September, 2009. It is these two orders which are sought to be quashed in these proceedings.

Part of the applicant’s submissions on the present application include/rely on an argument that the procedure by which he was discharged and then immediately made subject to the Admission Order procedure under s. 14 of the Act, was unlawful, inter alia, because the applicant was discharged even though it is quite clear that he was not recovered such that he ought to be discharged in a true sense. In fact, it would appear from what is stated by Dr. Rutledge in her report dated 18th August, 2009, a portion of which I set out hereunder, that not only had he not recovered, but that his condition was deteriorating or had deteriorated such that it was seen as necessary to have him admitted as an involuntary patient so that he could be transferred to the CMH to avail of the necessary services and treatment there.

It would appear that in a period shortly before the Admission Order was made on 6th August, 2009, the condition of the applicant may have been considered to be deteriorating. I say that because the reasons given for the making of that Admission Order refer to “an acute relapse of psychotic symptoms . . .” It is also notable that Dr. Rutledge, in that Order, stated that it was her opinion that the applicant was at that time suffering from a mental disorder as defined in s. 3(1)(a) of the Act (i.e. “where . . because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons . . .), as well as under s. 3(1)(b) thereof. The evidence for that can be seen in her report to the Mental Health Tribunal dated 18th August, 2009. That report states, inter alia, the following:

“In May 2009, he was noted to have a female patient’s name written on his hand and he couldn’t explain how this had happened or why. In May 2009, [the applicant] was reviewed by the Forensic Consultant Psychiatrist, Dr. Mohan. At that time, he continued to express delusional beliefs about a psychiatrist. Dr. Mohan noted that the order could not be transferred to the Central Mental Hospital under section 21. Mr. Mohan noted that this was a case where rights had superseded risk and that this was a cause for concern. He noted that his report would follow. Over the following weeks, [the applicant] remained unwell. He shaved his scalp and told staff that this was ‘more low maintenance’.
On 2nd July, 2009, in view of his partially treated mental state, his Clozapine was again increased. On a ward round on 6th July, 2009, [the applicant] in discussing his previous ‘experiences’, he told me ‘he went into the future, into 2020, and saw brains and then went through a metal door’. He told me this was not a dream and it could not have been his mind playing tricks on him. He remained acutely psychotic at that time.

On 20th July, 2009, [the applicant] wanted to shake my hand at a ward round and when I told him that wasn’t necessary, he was irritated by it and spoke to nursing staff about this afterwards, saying he wasn’t happy and saw it as a personal slight.

On 27th July, 2009, [the applicant] wrote a letter which reflected his acutely psychotic state of mind. See Appendix 1.

A case conference was held on 31st July, 2009, with the aim of discussing [the applicant’s] diagnosis, his treatment plan, updating his risk assessment and the management of that risk. This case conference was attended by the treating team and by ward staff. The latter part of the case conference was attended by [the applicant], his mother and aunt.” [My emphasis]

Legal submissions
Colman Fitzgerald S.C. for the applicant has submitted that there are two issues principally arising for determination. Firstly, whether the changing of the applicant’s status from voluntary to involuntary by discharging him, and then readmitting him immediately thereafter as an involuntary patient by means of the procedure provided for in s. 14 of the Act is lawful; and secondly, whether what he describes in his submissions as “the requirement” of the CMH that before a patient is transferred to that hospital for the sort of treatment required by the applicant, he/she must be an involuntary patient, is a lawful requirement.

By way of response to a preliminary point of opposition pleaded by the first and second named respondents, namely, that the applicant should be disentitled to seek reliefs by way of judicial review in these proceedings because he has not sought to challenge the decision of the Mental Health Tribunal which affirmed the Admission Order and subsequent Renewal Orders, Mr. Fitzgerald submits that such ought not be regarded as a prerequisite to the applicant seeking the reliefs which he seeks, and further submits that in any event, it would have been inappropriate for the applicant to do so since he is not impugning any order made by the Mental Health Tribunal, but rather, is seeking to have quashed the Admission Order itself, which has been affirmed and renewed.

Mr. Fitzgerald accepts that in view of the limited jurisdiction and function of the Mental Health Tribunal under the provisions of s. 18 of the Act, the Tribunal, when reviewing the Admission Order and any subsequent Renewal Orders, was obliged to affirm same since it is accepted that the applicant suffers from a mental disorder, as defined. He is at pains to stress that it is the manner by which the making of the Admission Order was achieved on 6th August, 2009, and therefore the lawfulness of that order that is at issue, and submits that that is an issue which the Tribunal could not concern itself with and could not decide.

In answer to a point of objection raised by the third and fourth named respondents in their Statement of Opposition that the applicant has not appealed the decisions of the Mental Health Tribunal to the Circuit Court, as he would be entitled to do under s. 19 of the Act, Mr. Fitzgerald has submitted, firstly, that it has not been submitted by those respondents that any particular consequence flows from the applicant not having brought such an appeal, and also that in any event, the Circuit Court’s jurisdiction is circumscribed by the provisions of s. 19, namely, that once it is established that the applicant suffers from a mental disorder (that being not in dispute in the present case), the Court must affirm this order.

Before dealing with other issues, I should indicate at the outset that I accept the applicant’s submissions in relation to these two preliminary points and that neither presents an obstacle to the present application for reliefs sought.
Lawfulness of the Admission Order
Mr. Fitzgerald, referring to the fact that immediately prior to 6th August, 2009, the applicant was a voluntary patient, refers, in that regard also, to the provisions of s. 2 of the Act, which defines a voluntary patient, as “a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order”.

He refers also to the provisions of s. 4 of the Act, which provide, inter alia, that when making any decision concerning the care and treatment of a person, including a decision as to whether to make an Admission Order, not only must the best interests of the person be the principal consideration, but also that any such decision must have regard to “the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy” [my emphasis]. Mr. Fitzgerald, in his submission, has placed much emphasis on the applicant’s rights to autonomy and dignity and suggests that the statutory scheme under the Act is designed to safeguard and protect these rights in a balanced way, taking account of the fact that in some cases, a person may require to be “detained”, but only in circumstances where that course of action is necessary.

He emphasises the word “necessary” and submits that it cannot be a matter of necessity to detain the applicant in circumstances where he has, at all times, clearly expressed a wish to remain as a voluntary patient, and has at no stage in the past number of years, while a voluntary patient, ever indicated a wish to leave the approved centre or attempted to leave the approved centre, such as would warrant the staff of the hospital availing of the provisions of sections 23 and 24 of the Act, in order to detain him as an involuntary patient.

In such circumstances, it is submitted that the change of his status from voluntary to involuntary is not “necessary” since he is willing to undergo any recommended and necessary treatment, but on a voluntary basis, even that treatment which is recommended by his doctors and which is available to him only at the Central Mental Hospital.

Mr. Fitzgerald submits that it is essential not to overlook the fact that a patient’s right to dignity and autonomy is not to be diluted or in any way given less force and effect simply because a patient has a mental disorder. He refers to the fact that the existence of a mental illness alone is not sufficient to justify the involuntary admission of a patient to an approved centre, since such persons often are treated, as indeed the applicant has been, as voluntary patients who are free to leave when they wish (subject, of course, to sections 23 and 24 of the Act).

For involuntary admission, it is a requirement that, in addition to having a mental disorder, it must be necessary for the proper care and treatment of the patient that he/she be made the subject of an Admission Order.

In the present case, Mr. Fitzgerald submits that it cannot be considered necessary for the applicant’s care and treatment that he be detained involuntarily, in circumstances where he has at all times, and is, willing to receive that treatment as a voluntary patient. It is submitted that the element of “necessity” cannot arise from the mere fact that there appears to be a policy on the part of the CMH that they will only provide the treatment which the applicant requires if he is the subject of an Admission Order, and that this element of “necessity” must arise only from the patient’s own circumstances and needs, rather than any policy by any particular approved centre.

It is submitted that to conclude otherwise would set at nought the rights to dignity and autonomy recognised by the Act, given the recognition in the Act of the right to be a voluntary patient. In that regard, as has already been set out above, a voluntary patient is defined in s. 2 as, “a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order”.

Mr. Fitzgerald refers also to the provisions of s. 16 of the Act, which provides, inter alia, that where a consultant psychiatrist makes and Admission Order, he/she must first of all send a copy of same to the Mental Health Commission, and secondly, give the patient a notice which must contain certain specified information, including (see s. 16(2)(g)) that, “the patient . . . may be admitted to the approved centre concerned as a voluntary patient if he or she indicates a wish to be so admitted”. It is submitted that in the present case, the procedure adopted has set at nought this entitlement, and that it has, in effect been denied to the applicant against the express statutory entitlement to choose to be a voluntary patient.

It was noted by the Tribunal, which sat in September 2009 to review the Renewal Order made at the end of August 2009:

“That negative symptoms of [the applicant’s] condition include apathy and avolition. She [i.e. Dr. Rutledge] said that he might well stay on for a period of 10 years, he is so passively compliant. She gave evidence of [the applicant’s] mental illness which has been diagnosed as treatment resistant schizophrenia. His underlying condition has not changed since admission, although some symptoms have eased. She is very concerned about the risk [the applicant] poses to others.”
In her affidavit sworn on 27th November, 2009, Dr. Rutledge has, at paragraph six thereof, expressed the view that the applicant does not believe that he suffers from a mental disorder and does not consider that he requires treatment, medication or hospitalisation. At paragraph eight of that affidavit, she accepts that the applicant has expressed no wish or intention to leave Our Lady’s Hospital. She goes on to say:
“However, this is an aspect of the applicant’s illness. In fact, it is one of the negative symptoms of his condition referred to above and the applicant could conceivably remain in hospital for years on a voluntary basis because the illness for which he is being treated itself makes him compliant. This is an issue of capacity. In my view, the applicant’s non-expression of intention or desire to leave the hospital is not because he is actively engaged with the issue and has made a choice, but arises from the illness itself. In my judgment, the applicant does not have capacity to make a free and conscious decision as to whether he wishes to remain in hospital. The significance of this is, of course, that his non-expression of a desire to leave is not the giving of consent to his admission or retention in hospital.”
At paragraph nine of her affidavit, Dr. Rutledge has expressed concerns also that if the applicant simply remains in Our Lady’s Hospital as a passive voluntary patient who never expresses any intention to leave, he will not have the benefits which would otherwise be available to him as an involuntary patient, such as an independent review of his condition, and that he could therefore remain in hospital for years without his case being reviewed by a Mental Health Tribunal.
At paragraph ten, she expresses her opinion that the applicant needs treatment which requires input from a specialised forensic, multidisciplinary team, and that he needs to be so treated in an environment where both his illness and risk are managed in a specialised, structured and supported way, and that it can be provided only at the CMH where, it appears, she has worked while completing her studies and training. She is aware that patients will be treated in this way only if they are there as involuntary patients, and she states that she is fully aware of the clinical reasons for that.

She goes on to say that his need for such treatment at the CMH is a matter of “absolute necessity” and also that he does not have the capacity to consent to remaining in hospital, and she describes the applicant as being a person whose status is voluntary in name only. At paragraph twelve, she states, inter alia, the following:

“. . . [on] 6th August, 2009, I was of the view that the applicant suffered from a mental disorder where there was a serious likelihood of him causing immediate and serious harm to himself or to other persons, and that the failure to admit him to an approved centre would be likely to lead to a serious deterioration in his condition or would prevent the administration of appropriate treatment that could be given only by such admission, and that the reception, detention and treatment of him in an approved centre would be likely to benefit or alleviate the condition of that person to a significant extent.”
She states also that because, due to the very nature of his illness, he has not shown any intention to leave Our Lady’s Hospital, “there is . . . no prescribed mechanism by which the applicant’s status could be changed from that of voluntary patient to an involuntary patient” and that it was in those circumstances that, “it was necessary for me to discharge the applicant as I could not continue to effectively detain him”. She says that she was having regard to the best interests of the applicant and to the safety interests of the public by discharging him when and how she did, and invoking the admission procedures leading to an Admission Order and Renewal Order. She referred also to Dr. Mohan’s view that the applicant needs the treatment which is available only at CMH, as already described, and that, accordingly, the procedure under s. 21 of the 2001 Act, was invoked to achieve the applicant’s transfer as an involuntary patient from Our Lady’s Hospital to the Central Mental Hospital.
As to Dr. Rutledge’s view that the applicant, in reality, has no capacity to make an informed decision to be a voluntary patient, Mr. Fitzgerald has referred to the definition of a voluntary patient in the 2001 Act, at s. 2 thereof, which provides simply that he/she is a person who is receiving care and treatment in an approved centre and who is not subject to an Admission Order or Renewal Order and to the absence of any requirement as to capacity to make a decision to be voluntary. He has referred also to what I have stated in this regard in my judgment in Mc.N. v. Health Service Executive, Unreported, High Court, 15th May, 2009, and to what is stated also by Kearns J. (as he then was) in the Supreme Court in E.H. v. Clinical Director of St. Vincent’s Hospital, 28th May, 2009. Mr. Fitzgerald submits, therefore, that simply because Dr. Rutledge is of the view that the applicant cannot make an informed decision to remain as a voluntary patient, he can be admitted lawfully as an involuntary patient by the means adopted in this case. Mr. Fitzgerald accepts, of course, that the question of capacity is an important one, but that if it is to be disputed and determined, it must be done in an appropriate manner consistent with constitutional and Convention rights, thereby affording the applicant the required level of procedural safeguards. But he submits that Dr. Rutledge’s opinion as to his capacity, however it was made, is of no legal effect, given the definition of a voluntary patient in s. 2 of the 2001 Act.

In this regard, Mr. Fitzgerald has referred to a number of judgments of the European Court of Human rights in which it is decided, firstly, that the determination of mental capacity is the determination of a civil right, thereby engaging rights under Article 6 of the Convention, including the right to be heard in relation to the question, as well as engaging privacy and family rights under Article 8, with any restriction on liberty being the least restrictive necessary, and respecting the principle of proportionality.

It is submitted that if it is the case that under the 2001 Act, or otherwise, the applicant’s status can be changed from that of voluntary patient solely on the opinion of a doctor, that the applicant lacks the capacity to decide to be a voluntary patient, then the law in this country, in that respect, is not compatible with the Convention.

Mr. Fitzgerald has referred to the comments of Hamilton C.J. in Re a Ward of Court (No. 2) [1996] 2 I.R 79:

“The loss by an individual of his or her mental capacity does not result in any diminution of his or her personal rights recognised by the Constitution including the right to life, the right to bodily integrity, the right to privacy, including self-determination, and the right to refuse medical care or treatment. The ward is entitled to have all these rights respected, defended, vindicated and protected from unjust attack and they are in no way lessened or diminished by reason of her incapacity.”
I have already touched upon the submission being put forward by the first respondent to the effect that the applicant’s presence at Our Lady’s Hospital as a voluntary patient was inconsistent with his need for a specific treatment necessitated by the nature of his particular illness, given that such treatment is necessitated by the nature of his particular illness, given that such treatment is available only at the CMH but only under conditions of involuntary detention. Dr. Kennedy, the second named respondent, has sworn an affidavit in which he describes in detail the regime of treatment which is available at the CMH and the reasons why such treatment cannot be provided to patients unless they are there as an involuntary patient, and accordingly, not in a position to leave the CMH, even if they wished to do so.
I have also referred already to the submission that, while the applicant is at Our Lady’s Hospital as a voluntary patient, both by reference to his own wishes, as expressed by him, and as a matter of fact, by reference to the definition of a voluntary patient contained in s. 2 of the 2001 Act, the reality, as expressed by Dr. Rutledge, is that he has not the capacity to make a fully informed decision to remain as a voluntary patient and that this lack of capacity is a direct consequence or result of the very illness from which he suffers.

Mr. Felix McEnroy S.C. for the first and second named respondents, has submitted, regardless of what is contended for by the applicant, as to the irrelevance of capacity with regard to the question of whether a person is a voluntary patient, that the test for whether a person is detained or not as an involuntary patient is not a test of capacity or consent, and in that regard, has referred to the definition of a mental disorder in s. 8 of the 2001 Act, and to the provisions of s. 14(1) of the Act, for the making of an Admission Order. Those provisions provide as follows:

“8. -(1) A person may be involuntarily admitted to an approved centre pursuant to an application order under sections 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder.
14. – (1) Where a recommendation in relation to a person the subject of an application is received by the clinical director of an approved centre, a consultant psychiatrist on the staff of the approved centre shall, as soon as may be, carry out an examination of the person and shall thereupon either-

(a) if he or she is satisfied that the person is suffering from a mental disorder, make an order to be known as an involuntary admission order and referred to in this Act as ‘an admission order’ in a form specified by the Commission for the reception, detention and treatment of the person and a person to whom an admission order relates is referred to in this Act as ‘a patient’, or

(b) if he or she is not so satisfied, refuse to make such an order.” [My emphasis]

Mr. McEnroy has referred also to the definition of “mental disorder” contained in s. 3(1) of the Act, which provides:
“3. – (1) In this Act, ‘mental disorder’ means mental illness, severe dementia or significant intellectual disability where-
(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons

or

(b)(i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.”

Mr. McEnroy has submitted that arising from this definition, the provisions as to admission are dependent not only on any question of capacity or consent, but rather, whether or not there exists a mental disorder, as defined in either (a) or in (b)(i) or (ii). It is submitted that the Oireachtas has not provided that the admission of a patient is dependent upon the patient’s own view of the need to detain him, and that this is not affected by whether or not the applicant in the present case has indicated that he wishes to remain as a voluntary patient.
It is submitted that where Dr. Rutledge was of the view that while the applicant was present at Our Lady’s Hospital as a voluntary patient, and has stated a wish that he should retain that status, whether there or at the CMH, that does not disentitle her to consider it necessary to discharge the applicant in order to invoke procedures necessary to detain him under and Admission Order where that need is necessitated by his mental disorder, as defined. It has been submitted that the circumstances in which a person may be discharged by medical staff are not the subject of statutory provision in the 2001 Act or elsewhere, and decisions of that kind are made by responsible professionals, and in this case, reference has been made to the overriding provision in s. 4 of the 2001 Act, whereby, when making an Admission Order or any other decision (including a decision to discharge), the best interests of the person must be the principal consideration, but with “due regard” to other persons who may be at risk, and to the need to give “due regard” to other persons who may be at risk, and to the need to give “due regard” to the right of the person to dignity, bodily integrity, privacy and autonomy.

Mr. McEnroy has submitted that there can be no doubt from the medical evidence given in the case from Dr. Rutledge, Dr. Mohan and Dr. Kennedy, that the applicant is a person in need of medical care and treatment which is available in this country only at the CMH, and that this care and treatment is only capable of being administered and provided under conditions of involuntary detention. It is submitted that where his mental illness requires this treatment, the decision to discharge him and the decision leading to the Admission Order and its renewal are decisions which are clearly in the applicant’s best interests, in that they provide a prospect of ameliorating his illness, and where this cannot be achieved if he simply remains at Our Lady’s Hospital as a voluntary patient for an indefinite period of time, albeit from where he has never made any attempt to leave and has not failed to comply with any treatment made available to him there.

It is submitted that in circumstances where Dr. Kennedy and others have described the treatment regime at the CMH which the applicant requires, and in particular, the need that such treatment be given and experienced under conditions of involuntary detention only, it is not an unlawful, arbitrary or disproportionate deprivation of liberty such as would constitute a violation of the applicant’s rights under either the Constitution or the Convention that he should be made the subject of an Admission Order in the manner that occurred herein, where the applicant was considered by the relevant medical experts to fulfil the definition of a mental disorder under s. 3 of the 2001 Act.

In this regard, also, Mr. McEnroy refers to the existence of provisions in s. 21 of the Act, for the transfer of patients to the CMH in certain circumstances for this very purpose.
Conclusions
This application is by way of judicial review to quash the Admission Order made on 6th August, 2009, and the later order renewing same on the basis that the former order is not one that is lawfully made in the circumstances of this case.

The application is predicated upon the fact that on 6th August, 2009, he was at Our Lady’s Hospital as a voluntary patient who had made no effort to leave, nor expressed any intention of leaving, and who was cooperating in every way with the care and treatment being given to him.

He wishes to remain as a voluntary patient, even in circumstances where a recommended treatment not available at Our Lady’s Hospital is available at the CMH. He says that he is willing to go to the CMH for that treatment and to remain there, but only as a voluntary patient. Unless his status is altered to involuntary, or unless the CMH can be required by order of this Court to take him as a voluntary patient, this required treatment will be unavailable to him.

It is submitted that he has an absolute right to retain his voluntary status as long as he expresses a desire to do so, and that the device whereby he was discharged, in a formal sense only, and immediately made the subject of an Admission Order, is an impermissible invasion and violation of that right; and furthermore, that what is referred to as the policy of the second named respondent of only treating patients who are the subject of an Admission Order, cannot justify the alteration of the applicant’s voluntary status, simply so that he can access treatment at the CMH which he accepts he requires.

This right to retain his voluntary status is said to derive from his rights to dignity, bodily integrity, privacy and autonomy, being rights recognised in the Act itself, as well as being constitutional rights and rights under the Convention.
Voluntary status
It is an obvious feature of the 2001 Act that it does not provide for the regulation of care and treatment of voluntary patients. Its focus is very clearly on persons suffering from a mental illness and who need to be involuntarily admitted to an approved centre. The Act makes little reference to voluntary patients except for:

(i) the provisions of s. 2 which defines a voluntary patient as being one who is receiving care and treatment who is not the subject of an Admission or Renewal Order;
(ii) the provision in s. 29 providing that nothing in the Act prevents a person from being admitted voluntarily or remaining as a voluntary patient after he/she has ceased to be liable to be detained, and

(iii) the provisions in sections 23 and 24 whereby a voluntary patient who attempts to leave may, in certain circumstances, be made the subject of an Admission Order and thereby prevented from leaving, even though he/she appears to wish to do so.

But there are no provisions in this Act which regulate or otherwise provide for how a voluntary patient is to be cared for and treated, and neither are there any provisions in this Act or otherwise for the review of a voluntary patient’s illness, care and treatment, or in respect of the discharge of a voluntary patient.
A voluntary patient is a person who, by definition, but subject to sections 23 and 24 of the Act, is free to discharge himself/herself from hospital. It is not the case that a hospital is obliged to take in any person who presents, expressing a wish to be admitted as a voluntary patient. Neither is it the case that a hospital may not discharge a voluntary patient, even in circumstances where the person is not cured of whatever illness caused admission in the first place.

For example, it might be concluded by the hospital that while the person has not been cured, there is no treatment available at that hospital which can be usefully administered with any prospect of improvement, and/or that he/she can be treated at home or on an outpatient basis. There would be professional obligations which would deter a hospital from discharging a person to circumstances where such a discharge would place the person in danger, but such a person could, on the other hand, be discharged into the care of responsible family members.

I say this simply to demonstrate that just because a person expresses a wish to remain in a hospital, including an approved centre, as a voluntary patient, does not mean that the hospital may not properly discharge the patient when it can no longer ameliorate the illness through any interventions available at the hospital.

What happened in the present case is that a view by the relevant professionals was taken, at least by the end of July 2009, and probably much earlier, given the events shown on the papers, that the applicant’s illness was such as to require treatment, but of a type which was not available at Our Lady’s Hospital. That treatment is available only at the CMH and is available to the applicant only if he is transferred to the CMH as an involuntary patient.

There has been no evidence that Our Lady’s Hospital had decided to discharge the applicant in the sense of sending him home. In fact, all the evidence is that, should the applicant attempt to leave the approved centre, or express an intention of so doing, the provisions of sections 23 and 24 would be invoked by his treating consultant psychiatrist as it is considered that he suffers from a mental disorder, as defined, and that at least in the public interest, he needs to remain in an approved centre.

But he is not going to get better simply by remaining at Our Lady’s Hospital. He needs a particular regime of treatment. That treatment is available only at CMH and only on certain conditions, namely, that he is not a voluntary patient since that treatment is inconsistent with voluntary status. It has therefore been decided that he should become an involuntary patient so that in his best interests he could avail of that treatment at the CMH. The problem has been how to achieve that situation within the provisions of the 2001 Act. Previous attempts to bring his voluntary status to an end by making an Admission Order have been unsuccessful as the history of the case has shown.

Nevertheless, everybody concerned has acted in what they consider to be the best interests of the applicant, as indeed they are bound to do. They want him to be able to access this particular treatment as it provides the only hope of long-term improvement in his chronic illness. As Dr. Rutledge has stated in her affidavit, the failure of the applicant to access this treatment would lead to a situation whereby the applicant would simply remain at Our Lady’s Hospital as a voluntary patient, passively going from day to day in complete compliance with any treatment being provided, and demonstrating no wish or intention to leave. It is clear, also, that this would be open-ended and would do nothing to advance the applicant’s health from its present state. The passivity and cooperation demonstrated by the applicant, and expression of his wishes to remain as a voluntary patient, is considered by the experts to be a symptom or consequence of the very illness from which he unfortunately suffers.

I am of the view that the decision to discharge the applicant in the way that occurred on 6th August, 2009, and then immediately have him made the subject of an Admission Order is a decision which the first named respondent was entitled to make.

The Act contains no provision which prohibits such a discharge in the case of a voluntary patient, and I have no doubt that, if under their professional and ethical guidelines for discharging patients, responsible medical personnel were not permitted to act in this way, they would not have done so. On the other hand, of course, s. 28 of the Act makes certain provisions in respect of the discharge of detained patients. They are not relevant to the present case.

Attempts, again in the best interests of the applicant, as he sees them, to admit the applicant under sections 23 and 24 of the Act, had been made previously, but these had been unsuccessful and the orders in question were revoked by the Tribunal, inter alia, on the basis that there was no evidence that there was no evidence of any attempt or intention to leave the approved centre. It is clear that the applicant’s family was anxious that he be made the subject of an Admission Order so that he could access the treatment he needs at the CMH.

By discharging the applicant, albeit other than by sending him home, they were facilitating his admission as an involuntary patient so that he could be provided with care and treatment considered necessary, since he fulfilled the criteria for admission as an involuntary patient. Nobody disputes that he has a mental disorder, and indeed, there is no dispute that he needs the treatment available at the CMH.

It cannot, in my view, be the case that a person suffering from a mental disorder must, in all circumstances, having first admitted himself/herself as a voluntary patient, always be allowed to remain at an approved centre on a voluntary basis for as long as he/she expresses a wish so to do.

There must be circumstances where a person who has a mental disorder admits himself to an approved centre and remains there voluntarily, yet whose condition deteriorates to a point where different treatment is required to be administered, perhaps at the CMH. Capacity to consent is not a requirement for being a voluntary patient, as has been made clear in the two decisions already referred to. The definition makes that clear. It could not be said, therefore, that once a person is a voluntary patient, he/she must forever remain a voluntary patient, even though no attempt is made to leave, or intention expressed to do so. The treating consultant psychiatrist must be entitled to make a decision in a patient’s best interests in order to facilitate access to recommended required treatment. Neither could it be the case that simply because a voluntary patient asserts a wish to remain as a voluntary patient, such an assertion must trump an expert medical opinion that he or she is incapable of making such a decision on an informed basis, particularly where it is thought that the very illness itself disables the person from making a properly informed decision in that regard. That would produce an absurd situation whereby an ill person could, because he/she is so ill, make a decision, the result of which is a denial of treatment which his doctors believe will assist the condition. The right to autonomy, dignity, privacy and bodily integrity could never justify such a scenario. The applicant’s stated wish to remain as a voluntary patient has the effect of denying to him treatment which he needs, given the fact that those at the CMH in charge of providing such treatment have stated clearly and categorically that it can be provided only to persons who are not there under an Admission Order. This Court cannot decide that such a policy is unlawful. It is not a question of it being lawful or not. It is a medical opinion that it is a form of treatment which cannot be otherwise provided.

It is necessary, first of all, to disentangle the applicant’s voluntary status at Our Lady’s Hospital, from the decision to invoke the provisions of the Act, leading to the making of the Admission Order under s. 14 of the Act, and to decide, firstly, was it permissible for the first named respondent to discharge the applicant on 6th August, 2009, and then to separately consider whether he fulfilled the requirements for admission under section 14. It is somewhat missing the point to consider matters in terms of whether or not it is permissible to alter a person’s voluntary status to involuntary, against his express wishes, simply because there is a policy at the CMH as to who they admit for treatment.

It was permissible to discharge the applicant as a voluntary patient, evening the manner achieved in this case, in spite of the fact that the applicant did not wish to be so discharged, or perhaps is presumed, for the purpose of this case, not to have so wished, since there has been no evidence of any objection being voiced by him. That discharge was not contrary to any law.

His wish, be it a properly informed wish or otherwise, to remain at the hospital, may have to yield to other considerations and decisions being made in his best interests by medical personnel in whose care he is. His right to remain as a voluntary patient is not, therefore, an absolute right, and it does not follow that his discharge, even one for the purpose of enabling him to be admitted as an involuntary patient, constitutes a violation of his rights to dignity, bodily integrity, privacy or autonomy. Of course, those rights are recognised and must be appropriately protected and vindicated, but they are limited to the extent that may be consistent with his best interests, as determined by relevant medical personnel, and provided that such limitations as are imposed, are imposed in accordance with laws enacted for the protection of the patient from any arbitrariness or caprice on the part of those detaining him.

I appreciate that Mr. Fitzgerald has submitted that making the applicant involuntary when he has stated that he will cooperate and has never showed signs to the contrary must mean that involuntary detention is not “necessary”. But, in my view, the element of necessity arises form the fact that the treatment which he needs is available to him only if he is involuntarily detained and, therefore, regardless of his own wishes in that regard. In saying that, I am overlooking the fact that Dr. Rutledge is of the view that he, in reality, is incapable for properly making a decision to be voluntary, due to the illness from which he suffers.

The next question is whether, having been discharged and therefore no longer a voluntary patient, the applicant, at that point in time, fulfilled the criteria for admission as an involuntary patient under and Admission Order, and whether the prescribed procedures were followed.

There can be no doubt that he suffered at that time from a “mental illness” as defined in s. 2 of the Act. That is not disputed. The question, then, is whether it was such as to amount also to a mental disorder and that is determined by reference to s, 3(1)(a) or (b) of the 2001 Act. Again, there is no doubt that the expert view was that the criteria for mental disorder is fulfilled. There is evidence that his illness fulfilled the criteria in both paragraph (a) and paragraph (b)(i) and (ii).

Of particular importance, in my view, is the provision in s. 3(1) paragraph (b)(i) and (ii) which includes as a mental disorder a mental illness where:

“. . . a failure to admit the person to an approved centre . . . would prevent the administration of appropriate treatment that could be given only by such admission, and (ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.”
It seems to me that there is no room for doubt, on the evidence, that the applicant’s situation fitted foursquare within that provision. Section 8 of the Act provides that a person may be involuntarily admitted to an approved centre and detained on the grounds that he or she is suffering from such a “mental disorder”. There is no suggestion that the steps taken leading to the making of the Admission Order on 6th August, 2009, were other than in accordance with the statutory provisions in that regard. Once the personnel concerned were entitled to discharge the applicant as a voluntary patient, then there was nothing to prevent his being made the subject of an Admission Order, provided, of course, that the correct procedures were followed.
I am satisfied, therefore, that it was permissible to discharge the applicant on 6th August, 2009, and that, having done so, the requirements for making an Admission Order were fulfilled and the required steps taken. None of that, in my view, constitutes a violation of the applicant’s constitutional rights to dignity, autonomy, privacy or bodily integrity, since everything that occurred did so in his own best interests from a medical point of view, and in circumstances where there was an expert view that his own capacity to make a fully informed and appropriate decision regarding his status is impaired by the very illness it sought to treat, and where his own wish to remain a voluntary patient will result in a denial to him of necessary recommended treatment available only at the CMH.

As to the so-called policy at CMH that this treatment will be given only to involuntary patients, I have already said something about that. I do not regard it as a policy arising from some arbitrary decision on the part of the CMH that it will not admit and treat voluntary patients. All the evidence adduced in this case makes it clear that the reason why a voluntary patient cannot access this treatment is that a patient receiving this treatment must, if necessary, be prevented from leaving the CMH and must be capable of being restrained in other ways, perhaps, by reason of the very nature of the treatment, as described. I appreciate that sections 23 and 24 of the Act provide for the detention of a voluntary patient who might attempt to leave an approved centre. But I such a circumstance, the initial detention under s. 23 is for not more than twenty-four hours, and there is then a procedure to go through under s. 24 of the Act which requires another consultant psychiatrist to carry out an examination of the patient, who must then issue a certificate as to the need to detain.

Thereafter, an Admission Order is made and the procedures and safeguards set forth in sections 15 to 22 of the Act apply as if the patient had been the subject of an Admission Order made under section 14. I can well understand that, given the intensive nature of the treatment being undertaken at the CMH, it would be desirable that it should not have to be interrupted by reason of having to adopt procedures under sections 23 and 24, should the voluntary patient decide or try to leave the CMH.

For that reason, I can fully understand that from a medical treatment point of view, the formalities for involuntary admission might need to be completed prior to admission or transfer to the CMH. There seems to me to be nothing irrational or arbitrary, less still, discriminatory, about having a requirement that such patients accessing this particular treatment at CMH be there on an involuntary basis.

I am not satisfied that in circumstances where I am of the view that such procedures as were adopted in this case, and the reasons for them are in accordance with the statutory provisions, such a statutory regime is unconstitutional. For the reasons stated, I am satisfied that it does not violate the applicant’s constitutional rights, as submitted.

For these reasons, I refuse the reliefs sought.

ET v Clinical Director of the Central Mental Hospital

[2010] IEHC 378

JUDGMENT of Mr. Justice Charleton delivered the 2nd day of November 2010
1. Maria, the name I will call the applicant, is a patient in St. Brendan’s Hospital in Grangegorman. She seeks declaratory relief from the Court that her detention under the provisions of the Mental Health Act 2001 (“the Act of 2001) constitutes torture, or inhuman or degrading treatment pursuant to Article 3 of the European Convention on Human Rights and Fundamental Freedoms 1950. Following on the declaratory relief sought in these proceedings, it is argued on her behalf that appropriate action will be taken by the State to rectify the situation. St. Brendan’s Hospital is not a party to these proceedings. In the ordinary course of litigation, this makes it impossible for the Court to make a declaration against them. The reason that the Clinical Director of the Central Mental Hospital in Dundrum is joined instead is that better treatment exists in that institution for Maria than is available in St. Brendan’s Hospital. Due to stretched resources, she has now spent eight months waiting for a bed to enable her to go from St. Brendan’s Hospital to the Central Mental Hospital. That wait, the availability of better treatment in another place and the circumstances of her current detention make up the elements of the complaint.
Background
2. I will be brief in my descriptions of Maria’s background. Both her parents suffered from mental illness. She was reared in a kindly fashion by an order of nuns. When she reached adolescence, serious mental problems began to manifest themselves. After a number of episodes of absconding from her residence, she came to the attention of psychiatric services. The situation is not clear as to whether, from that time on, Maria remained in St. Brendan’s Hospital in Grangegorman, but it appears probable that she was at some stage living in hostel accommodation in Dublin City. For a short period in 2002, she was admitted to the Central Mental Hospital and what was then a difficult situation in her illness improved somewhat. She then returned to St. Brendan’s Hospital which has been her main place of residence since she was nineteen years of age.

3. One of the background facts that seem to have most disturbed her condition was an especially vicious rape in 1987. This required a blood transfusion in its aftermath. In consequence of this crime, she has symptoms that are consistent with post traumatic stress disorder. To this serious condition are added paranoid delusions and an underlying serious psychiatric illness. This has resulted in her being unable to trust people, incapable of engaging with psychologists on the team in St. Brendan’s, and to her feeling deep rooted insecurity and uncertainty, with low self worth and violent impulses. She has attacked patients on occasion, often looks at nursing staff in an aggressive or vacant manner and has been involved in serious assaults. Up to November 2009, Maria was a voluntary patient in St. Brendan’s Hospital. Then a grave incident occurred. She attacked a nurse, grabbing her by the hair and throwing her to the floor, where she kicked her viciously and repeatedly. She was described by the nurses who attended the victim as smiling in the aftermath of the attack. The victim lost a number of teeth and suffered other injuries, including profound shock.

4. She was nursed in seclusion following the attack. A security officer had already been engaged by the hospital to shadow her, so as to prevent further damage to the staff. She, however, believes the nursing staff have been rough with her.

5. One of her treating psychiatrists, Dr. Maria Theresa Ramanos, on the 7th December, 2009, recommended that she should be considered for admission to the Central Mental Hospital. At that stage Maria had been managed in seclusion for several weeks.

6. A Mental Health Tribunal met, as the statutory regime requires, and agreed that the applicant should be transferred from St. Brendan’s to the Central Mental Hospital for the purposes of treatment.
The Statutory Power
7. It is unnecessary for the purposes of this judgment to detail the statutory powers that have been exercised in detaining Maria. It suffices to say that from a procedural and statutory viewpoint, no difficulty has arisen. Under s. 3 of the Mental Health Act 2001, a person may be detained against their will in a mental hospital, which the Act refers to as an approved centre, where they have a mental disorder, which means a mental illness or severe dementia, or significant intellectual disability and where (i) because of the condition there is a serious likelihood of the person causing harm to themselves or others, or (ii) because of the severity of the condition, a failure to hospitalise would be likely to lead to a deterioration or would prevent the administration of appropriate treatment, and the reception and treatment of the person in a hospital would be likely to benefit or alleviate the condition to a material extent. It is clear, on the basis of the papers, that from the first involuntary admission that both a serious likelihood of harm by Maria to herself, or to other people, and a necessity for hospitalisation in order to alleviate her condition, were present.

8. Under s. 21 of the Mental Health Act 2001, where the Clinical Director of a hospital where a mental patient is detained is of the view that for the purpose of obtaining special treatment, the patient should be transferred somewhere else, that transfer may be arranged with the consent of the receiving hospital. That is the ordinary situation as between two hospitals that may treat people who have a mental illness. In the case of the Central Mental Hospital, however, s. 21(2) provides that if the transfer is to be to the Central Mental Hospital, then the Mental Health Commission must be notified who must refer a proposal to a Mental Health Tribunal, which Tribunal must decide to either refuse to authorise the transfer or to certify that it is in the best interests of the health of the patient. The transfer was authorised, in that regard, as the statutory scheme demands, in respect of Maria. Having been detained in St. Brendan’s Hospital by virtue of an order affirmed by a Mental Health Tribunal on the 22nd December, 2009, a proposal was made on the 14th January, 2010, to transfer her to the Central Mental Hospital. This was accepted by a Mental Health Tribunal on the 27th January, 2010. Subsequent to that renewal, orders in respect of her involuntary detention were made by the Mental Health Tribunal on the 9th of April and the 29th September, 2010.

9. An authorisation of a transfer does not, however, constitute an order that a patient should be transferred from one hospital to another. Nor does it necessarily mean that the treatment being afforded to a patient who is not transferred is inadequate; much less that it constitutes torture or inhuman or degrading treatment. It is argued here, however, that the combination of the availability of better treatment in the Central Mental Hospital, coupled with the conditions of confinement in St. Brendan’s, constitute a breach of Article 3 of the Convention.
Conflicting Opinions
10. As may be the case with many other professional disciplines, the psychiatrists involved in this case have different opinions, or have nuanced their views differently. The issues may be easily resolved on the material before the Court. The probable conclusion which the Court must reach on the reports that it has read, is the Maria would be better treated in the Central Mental Hospital than in St. Brendan’s Hospital. This is not to imply any disrespect toward the care which she already receives there.
The Central Mental Hospital
11. The Central Mental Hospital is a discretionary referral hospital. No one can be admitted to the hospital directly from the community. Admission can only be made from within the community of those currently receiving psychiatric care in hospitals, in the manner already described in this judgment. In addition, the Central Mental Hospital has a responsibility for those who are detained having been found not guilty by reason of insanity in the context of criminal justice system. The Central Mental Hospital also operates an outreach programme to prisons and, under s. 15 of the Criminal Law (Insanity) Act 2006, in-patient treatment can be given in that hospital, in appropriate cases, by the direction of a Governor of a prison. These clinical demands put a severe strain on the treating staff of the Central Mental Hospital and its accommodation of 93 beds, 8 of which are for women. Most stays by women, as I understand the affidavit evidence of the Director of Central Mental Hospital, Prof. Harry Kennedy, are short-term.
Under Capacity in a Medical System
12. It is clear that the Central Mental Hospital would accept Maria were they able to do so. At present she is on a waiting list, but as to when her admission may occur is very uncertain. How is the Court to say that a patient should be given priority on a waiting list, when to do so would clearly, by the very nature of a waiting list, disenable others? It would only be in circumstances of the most extreme kind, in my view, that the Court should interfere. The circumstances are akin, in my view, to those which are analogous to the abuse of public authority or to decision making conducted so as to fly in the face of fundamental reason and common sense.

13. Absent cases of real urgency, where to fail to act would endanger or cause serious injury to health that is demonstrated to be avoidable and which would not endanger other patients in a similar situation, or where the prioritisation of patients is being conducted in an arbitrary or unreasonable manner, the court should not interfere in favour of a litigant patient so as to put him or her by court order above others on a waiting list.

14. In the course of his judgment in D.H. (a minor) v. Ireland and the Attorney General (Unreported, High Court, 23rd May, 2000), Kelly J. had this to say concerning an application to transfer a 12 year old child to the Central Mental Hospital in the context of the absence of a place, at p. 12 of the unreported judgment:-

“Quite apart from all that however, there are other problems associated with the move to the Central Mental Hospital. It is full. It has room for 85 patients. All beds are occupied there and there is a waiting list for admission. Seven male and two female prisoners are at present in prison when by reason of mental illness they should be in the hospital. If I send D. there it is likely that an existing patient will have to be released or at the very least a patient on the waiting list will be deferred. These are mentally ill people; D. is not. It is not in my view for this Court to assume responsibility for a clinical decision concerning the admission, discharge or deferral of sick people. That is particularly so when I know nothing of these other patients or prospective patients. They may very well be more deserving of the facilities of the Central Mental Hospital than D.
For this reason alone this Order ought not to be granted. Even without this I would in any event be slow to make an order in the teeth of Dr. O’Neill’s [of the Central Mental Hospital] strong opposition to it. It seems to me that the views of Lord Justice Balcombe as expressed in the English case of Re: J. a minor [1992] 2 F.R. 165, at 175, have much to recommend them. In the course of his Judgment he said this, and I quote:

‘I find it difficult to conceive of a situation where it would be a proper exercise of the jurisdiction to make an Order positively requiring a doctor to adopt a particular course of treatment in relation to a child unless the doctor himself or herself was asking the Court to make such an Order. Usually all the Court is asked or needs to do is to authorize a particular course of treatment where the person or body whose consent is requisite is unable or unwilling to do so.’

That is the end of the quotation. Then later in the Judgment he said:

‘The Court is not or certainly should not be in the habit of making Orders unless it is prepared to enforce them. If the Court orders a doctor to treat a child in a manner contrary to his or her clinical judgement it would place a conscientious doctor in an impossible position. To perform the Court’s Order could require the doctor to act in a manner which he or she genuinely believed not to be in the patient’s best interests. To fail to treat the child as ordered would amount to a contempt of Court. Any Judge would be most reluctant to punish the doctor for such contempt, which seems to me to be a very strong indication that such an Order should not be made. I would also stress the absolute undesirability of the Court making an Order which may have the effect of compelling a doctor or Health Authority to make available scarce resources both human and material to a particular child without knowing whether or not there are other patients to whom those resources might more advantageously be devoted.’

There the Judge deals with both of the impediments which exist concerning the possible detention of D. in the Central Mental Hospital. Applying that reasoning and having regard to the findings which I have made in the light of the evidence which has been placed before me, I refuse to make an order directing the Central Mental Hospital to receive and detain D.”
15. It may be argued that the unavailability of treatment, for instance a particular operation, is due to the failure to adequately resource medical facilities. To make such a case is to assume a heavy burden and one that requires a court to become convinced that the decisions leading to the complained of situation are amenable to judicial review of administrative action in the sphere of medical treatment. Issues as to the proper priority of resources are ones that should be properly left to the competent authorities that are charged with taking an overall view as to priorities and demands. This is very different to the case by case approach by a court which ill fits with the debate and analysis that is required in the allocation of resources in the provision of health care to a community. In R. v. North West Lancashire Health Authority ex parte [2000] 1 WLR 977, the Court of Appeal in England dealt with the issue as to whether a Health Authority should provide funding for operations enabling people to change sex. These operations were not available within the functional area of that Health Authority, because a decision had been made not to fund them. A judicial review challenged thereto was dismissed. In the course of his judgment, Buxton L.J. referred to propositions that had been established in earlier case law on the issue of the proper allocation of resources. At p. 997 of the report he stated:-
“A number of propositions are clearly established . . . . They are:

1. A health authority can legitimately, indeed must, make choices between the various claims on its budget when, as it will usually be the case, it does not have sufficient funds to meet all of those claims. 2. In making those decisions the authority can legitimately take into account a wide range of considerations, including the proven success or otherwise of the proposed treatment; the seriousness of the condition that the treatment it intended to relieve; and the cost of that treatment. 3. The court cannot substitute its decision for that of the authority, either in respect of the medical judgments that the authority makes, or in respects of its view of priorities . . . [I]t follows from the foregoing propositions that a health authority can in the course of performing these functions determine that it will provide no treatment at all for a particular condition, even if the condition is medically recognised as an illness requiring intervention that is categorised as medical and curative, rather than merely cosmetic or a matter of convenience or lifestyle . . . [T]he court’s only role is to require that such decisions are taken in accordance with the equally well known principles of public law. Those principles include a requirement that the decisions are rationally based upon a proper consideration of the facts. The more important the interest of the citizen that the decision affects, the greater will be the degree of consideration that is required by the decision-maker. A decision that, as is the evidence in this case, seriously affects the citizen’s health will require substantial consideration and be subject to careful scrutiny by the court as to its rationality. That will particularly be the case in respect of decisions of the nature referred to in the previous paragraph of this judgment, which involve the refusing of any, or any significant treatment in respect of an identified and substantial medical condition.”
Article 3
16. Article 3 of the European Convention on Human Rights provides as follows:-
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
17. It should not be forgotten that the provisions of the European Convention on Human Rights were enacted in the aftermath of genocide, aggressive war and mass murder that characterised the continent of Europe for a period from 1933 to 1945. The Convention establishes a foundation of rights in terms of the entitlements of citizens. The states that are party to the Convention are entitled to provide better or additional rights but are not permitted to sink below the minimal level established by the Convention. What a right is, and what the deprivation of a right consists of, will change to some degree from generation to generation and is dependant to a degree on the community expectations that are established in times that have ameliorated the poverty general at the time when the Convention was drafted. It seems to me that would not be regarded as a deprivation of rights in the context of the economic and social state of Europe in the aftermath of World War 2 might be considered differently in the context of contemporary life. The Convention is a living document and its interpretation may change, certainly to some small degree, from generation to generation.
18. Intention is not definitive as to whether a situation amounts to torture or inhuman or degrading treatment. It is obvious that those who have people within their power, and intend to treat them violently, will also often have the means to carry out that intention. That situation is plain. Wrongs like torture and inhuman or degrading treatment can also proceed from other causes. Ignorance and neglect can, absent intention, also lead to the same result.

19. The words used in Article 3 are deliberately evocative of a repugnant situation from the point of view of human rights. Some people may be particularly vulnerable and may thus, as a matter of ordinary sense, require greater protection under the Convention. This applies both to an intended wrong and to one that comes about consequent on inattention. As people differ in their social capacity, a situation which might not cause difficulty to a healthy fisherman in early middle age might constitute a violation of Article 3 to someone rendered infirm by reason of age. Some guidance is given by a short passage from the judgment of the European Court of Human Rights in Ireland v. U.K. [1980] 2 EHRR 25 at para. 162:-

“. . . Ill-treatment must attain a minimum level of severity if is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all of the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and the state of health of the victim, etc . . . The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and at Protocols 1 and 4, Article 3 makes no provision for exceptions and, under Article 15(2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation.”
20. It is clear that to deprive someone of their liberty within a mental hospital for ulterior or improper purposes, perhaps because of a dislike of their political views, can constitute a violation of Article 3; Ashingdane v. United Kingdom [1985] 7 EHRR 528. Moreover, as the Court pointed out in Herczegfalvy v Austria [1993] 15 EHRR 437 at para. 82, those who are confined in a psychiatric hospital are in reality assigned to a position of inferiority within society and are rendered powerless; thus, national courts are enjoined to be more than usually vigilant in assessing claims of a violation of Article 3 based on psychiatric detention. At that paragraph, the Court went on to state:-
“While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3… whose requirements permit of no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”
21. As Clarke J. stated in J.H. v. Russell (Mental Health) [2007] 4 IR 242 at paras. 51-52, there can be situations which fall so far short of acceptable as to the conditions of detention and treatment that confinement becomes unlawful. It is also the case that a situation of confinement that would ordinarily be lawful, may be rendered unlawful by reason of a medical condition. This is exemplified by the case of Aleksanyan v. Russia, Final Judgment of the European Court of Human Rights delivered on 5th June, 2009. There it was held that to confine a person suffering from AIDS and the weakness and illness consequent on that condition within an ordinary prison, especially where the state had refused to allow a visit from an independent medical commission, can render a detention a breach of Article 3. In that instance a transfer to the Moscow AIDS Clinic would have markedly assisted the applicant within a context where he was a minimal security risk.
22. Those involuntarily confined through mental illness and those serving sentences are under authority of an extreme kind. History has shown that abuses can easily grow up because of the entitlement to control others. National authorities are thus enjoined to take special care in guaranteeing the physical and mental well-being of persons deprived of their liberty; see Ukhan v. Ukraine, Final Judgment of the European Court of Human Rights the 18th March, 2009 at para. 72-74.

23. In Grori v Albania Final Judgment of the European Court of Human Rights delivered on the 7th October, 2009, the Court at paras. 126-127, characterised the relationship between the conditions of detention, the state of health of the detainee and the obligations of national governments under Article 3 in a most helpful way. This is what was said:-

“126. In exceptional cases, where the state of a detainee’s health is absolutely incompatible with detention, Article 3 may require the release of such a person under certain conditions (see Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5th April 2001). There are three particular elements to be considered in relation to the compatibility of the applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention; and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002-IX).
127. However, Article 3 cannot be construed as laying down a general obligation to release detainees on health grounds. It rather imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty. The Court accepts that the medical assistance available in prison hospitals may not always be at the same level as in the best medical institutions for the general public. Nevertheless, the State must ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudla v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; see also Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79; and Kalashnikov v. Russia, no.47095/99, §§ 95 and 100, ECHR 2002-VI). In Farbtuhs v. Latvia (no. 4672/02, § 56, 2 December 2004) the Court noted that if the authorities decided to place and maintain a seriously ill person in detention, they should demonstrate special care in guaranteeing such conditions of detention that corresponded to his special needs resulting from his disability (see also Paladi v. Moldova, no. 39806/05, § 81, 10th July 2007).”
Conclusions
24. Having reviewed all of the evidence, and in the light of the relevant legal authorities, I conclude as follows:

(i) there has been no intention by any of the parties to this case, or any other treating hospital or medical professional, to treat Maria in any way that is incompatible with her dignity under the Constitution and her human rights as guaranteed in Article 40 and in the European Convention on Human Rights, particularly Article 3;
(ii) a legitimate difference of opinion has arisen in relation to the proper course of her treatment. Professor Kennedy, in the Central Mental Hospital, is of the view that an increase in some of her medication to a therapeutic dose coupled with treating her with more nursing care would assist her condition. None of this would amount in any way to inhumanly treating her or to degrading her or torturing her. Some improvement has already been manifest under the current approach. In recent months, her isolation has eased as her conduct has improved. The condition of her sleeping quarters, involving as it does a blocked out window, and her being shadowed by security personnel, is regrettable, but it is also understandable in the context of the series of assaults to which medical personnel have been subjected;

(iii) in the context of Maria’s state of health, the conditions of treatment and the confinement applied to her are not unreasonable. It is impossible to say that they are not mandated by her condition even though better treatment may be available elsewhere. They do not amount to torture or to inhuman or degrading treatment;

(iv) Maria may receive some benefit through being transferred for a time to the Central Mental Hospital. The Court cannot be expected to order her transfer, in the context of scarce resources, in preference to other patients on that waiting list who would have their necessary treatment put back in consequence;

(v) Maria’s right to privacy has been briefly mentioned. That right is certainly infringed by her conditions of confinement, but this is necessary for her proper care and treatment so that harm may be avoided to herself and to those who come in contact with her. This is not a breach of her Convention rights or her right to privacy under the Constitution because it is necessary and is justified by the statutory scheme; and

(vi) Maria’s detention is not therefore unlawful. There is no breach of Article 3 of the European Convention on Human Rights. Whereas her constitutional rights have been severely circumscribed, this has been done in accordance with the paternal jurisdiction of the State to care for the severely ill. No steps have been taken beyond those which are reasonably necessary within the context of the condition that has caused it.

D.G. v. Eastern Health Board

[1998] 1 I.L.R.M. 241

Hamilton CJ

This is an appeal brought on behalf of D.G. (a minor) by his guardian ad litem M.R. (hereinafter referred to as the applicant) against the judgment and order of Kelly J given and made on 27 June 1997.

The relevant portion of said order is as follows:

It is ordered that the Governor of St Patrick’s Institution forthwith do detain in his custody the said applicant for a period of three weeks during which time:

The applicant is to be subject to the discipline of the said St Patrick’s Institution.

A full psychiatric assessment is to be carried out on the applicant at the clinic in St Patrick’s Institution.

That the said governor do dispense with visitation restrictions in so far as is possible and consonant with the good running of the institution so as to allow officials of the Eastern Health Board access to the applicant.

And it is ordered that this matter be listed before this Court on Friday, 18 July 1997 for further review.

By order dated 28 April 1997 the learned trial judge had made an order appointing the minor’s next friend as his guardian ad litem in these proceedings *244 and had granted leave to apply by way of application by judicial review for:

(i) A declaration by way of an application for judicial review that in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children, the respondents have deprived the applicant of constitutional rights under Articles 40 and 42 of the Constitution, with particular reference to the provisions of Article 40.1, Article 40.3.1°, Article 40.3.2° and Article 42.5.

(ii) Mandamus by way of an application for judicial review directing the respondents to provide suitable care and accommodation for the applicant.

(iii) An injunction by way of an application for judicial review directing the respondents to provide suitable care and accommodation for the applicant.

(iv) Damages,

on the grounds set forth at paragraph (e) which said paragraph is as follows:

(e) Grounds upon which relief is sought.

(i) Declaratory relief
(i) 1. The applicant was born on 9 July 1980 and has been in the care of the first named respondent since 1984. The applicant was sent to a secure unit in the United Kingdom by the first named respondent in August 1996 and while in that jurisdiction he was convicted of criminal offences and was sentenced to nine months’ detention on 29 November 1996 by Reading Youth Court. Before the completion of that sentence the applicant was transferred to St Patrick’s Institution, Dublin on foot of an application by the Minister for Justice to this Honourable Court pursuant to the Transfer of Sentenced Persons Act 1995. On 7 March 1997 the applicant was released from St Patrick’s Institution without there being any accommodation available to him. He is currently homeless and is residing on a temporary basis with Fr Peter McVerry.

2. The applicant has been identified as a child at risk who has in the past exhibited behaviour that is dangerous to himself and potentially to others. The lack of suitable residential care facilities has meant that the applicant’s rights have not been vindicated. The first named respondent’s failure to make provision for suitable care and accommodation for the applicant is in breach of its obligations to provide care for the applicant.

(ii) Mandamus to provide suitable care and accommodation for the applicant.

1. Ss. 4 and 16 of the Child Care Act 1991 impose statutory obligations on the first named respondent to take children into care where those children require care or protection that they are unlikely to receive unless they are taken into care. In the case of s. 4 this care is voluntary while in the case of s. 16 application is made to the court for a care or supervision order. The first named respondent has failed in its statutory obligation in not protecting and providing care (including suitable residential care) for the applicant who is a child at risk.

2. S. 38 of the Child Care Act 1991 imposes a statutory duty on the first named *245 respondent to make arrangements with suitable persons to ensure the provision of an adequate number of residential places for children in care. The first named respondent has failed to provide an adequate number of such suitable residential places.

3. S. 5 of the Child Care Act 1991 imposes a statutory duty on the first named respondent to take such steps as are reasonable to make available suitable accommodation for a homeless child in its area where the first named respondent is satisfied that there is not accommodation available which the child may reasonably occupy. The first named respondent has failed in its statutory obligation in not providing suitable accommodation for the applicant who is homeless within its area.

(iii) Injunctive relief
(iii) 1.Having regard to the nature of the matters in respect of which relief is sought by way of an order of mandamus, the nature of the respondents against whom relief may be granted and all the circumstances of the case, it would be just and convenient for this Honourable Court to grant the injunctive relief sought.

2. The applicant will suffer irreparable loss and damage. Damages would not be an adequate remedy to the applicant.

The said order dated 28 April 1997 further provided that:

The applicant be at liberty to issue a notice of motion seeking injunctive interlocutory relief — returnable before this Court at 11.00 a.m. on Tuesday, 6 May 1997 and to serve same on the chief executive officer on behalf of the first named respondent and on the Chief State Solicitor on behalf of the second and third named respondents.

In pursuance of the aforesaid order of the High Court made on 28 April 1997 the applicant caused to be issued a notice of motion claiming the relief he had been granted leave to seek and the said motion was served on the solicitor to the first named respondent and on the Chief State Solicitor on behalf of the second and third named respondents.

The said notice of motion was returnable for 6 May 1997 and on that date a statement of opposition was filed on behalf of the said second and third named respondents but it does not appear from the papers filed in this appeal that a statement of opposition has yet been filed on behalf of the first named respondent.

It appears from the submissions made on behalf of the applicant that at the time when the application for leave to seek relief by way of judicial review was made to the High Court on 28 April 1997, the applicant was residing with Fr Peter McVerry at Ballymun Towers in the City of Dublin and had been so residing with him from 7 March 1997.

During this period the applicant’s solicitor had, on five occasions, written to *246 the solicitor to the first named respondent requesting that proper accommodation be made available for him.

The application for interlocutory relief was adjourned from time to time on the basis that the applicant would continue to reside with Fr McVerry and that the first named respondent would continue to make enquiries as to whether a suitable facility for him could be found abroad as no suitable facility existed within the State.

On 4 June 1997 the applicant was hit over the head with an iron bar by another resident in the hostel. He was taken to hospital with a fractured skull and was discharged from hospital on 12 June 1997. He spent the night of 12 June in bed and breakfast accommodation.

The matter was then brought before Kelly J who made an order on that day that the applicant should reside at Kilnacrot Abbey under the care of child care workers. The matter was again listed before Kelly J on 17 June 1997 when he directed that the applicant should continue to reside at Kilnacrot Abbey under the control and care of child care assistants who were to be provided by the first named respondent.

The matter was again listed before Kelly J on 26 June 1997 because it appeared from an updated court report made by Ms Fulham that the applicant’s placement in Kilnacrot would cease from 7 July 1997 because the Kilnacrot authorities were due to receive a large group on that day and they would not be in a position to further accommodate the applicant.

It was in these circumstances that the matter came before Kelly J on 26 June 1997 and was dealt with by him on that day and on the following day, 27 June 1997.

At the beginning of his judgment, the learned trial judge stated:

This is yet another case in which the court is called upon to exercise an original constitutional jurisdiction with a view to protecting the interests and promoting the welfare of a minor. The application arises because of the failure of the State to provide an appropriate facility to cater for the particular needs of this applicant and others like him. It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after. No such unit exists in this State and even if one did, there is no statutory power given to the court to direct the applicant’s detention there. Such being the case, and in the absence of either legislation to deal with the matter or the facilities to cater for the applicant, I have in the short term to do the best that I can with what is available to me.

He then dealt with the history of the applicant and his family situation which he properly described as ‘quite appalling’.

He summarised such history in the following terms: *247

The evidence which I have at this stage can be summarised as follows: First, the applicant is not mentally ill. Secondly, he has a serious personality disorder. Thirdly, he is, both by reference to his conduct in the past and the evidence which I have had from Ms Fulham and Dr Smith, a danger to himself. Fourthly, he is a danger to others. Fifthly, he has a history of criminal activity and violence. Sixthly, he has a history of arson. Seventhly, he has in the past absconded from non-secure institutions. Eighthly, he has failed to co-operate with the Eastern Health Board and its staff. Ninthly, he has failed to co-operate in the carrying out of a psychiatric assessment upon him in the past.

It is obvious from a consideration of the judgment of the learned trial judge that he was confronted with a very difficult question of what he was to do with a view to vindicating the applicant’s constitutional rights and ensuring, as best he could, the promotion of his welfare and that he was fully aware that in determining this issue he had to regard the welfare of the applicant as of paramount consideration to him and that he was under an obligation to uphold the applicant’s constitutional entitlements as a minor and to ensure in so far as he could that his needs were catered for.

It was agreed by the parties hereto that there were only four options available to the learned High Court judge. These options were:

1. To do nothing;

2. To direct his continued detention in Kilnacrot;

3. To order the applicant’s detention in the Central Mental Hospital;

or

4. To order the applicant’s detention in St Patrick’s Institution.

For the reasons set forth in the course of his judgment, he rejected the first three options and made the order, directing the detention of the applicant in that institution up to 18 July 1997, when the position would be reviewed.

He provided in his judgment that:

1. the applicant would be subject to the normal discipline of that place,

2. he would have a full psychiatric assessment made on him by the psychiatric staff in the clinic attached thereto and in respect of which he had evidence from Dr Smith,

3. there would be liaison between the Eastern Health Board staff and the authorities of St Patrick’s Institution,

4. by Wednesday, 16 July, the court was to be put in possession of a report of the psychiatric staff at St Patrick’s Institution and from the Eastern Health Board as to what progress, if any, have been made and as to the general well-being of the applicant,

5. the Eastern Health Board would continue to try and find a place suitable for the applicant’s needs out of the jurisdiction, and

6. the matter would be reviewed by him on 18 July 1997.

*248

It is unfortunate and regrettable that a judge should be forced to the conclusion that the welfare of a child, such as the applicant, required that he be detained in a penal institution by reason of the failure of the State to provide adequate facilities to cater for his needs and his rights.

Appeal
From this order the applicant has appealed on the grounds that:

1. The learned trial judge did not have jurisdiction pursuant to the inherent jurisdiction of the High Court to order the detention of the applicant in a penal institution, namely, St Patrick’s Institution.

2. The learned trial judge was wrong in law and in fact in exercising the inherent jurisdiction of the court in such a manner as to direct the detention of the applicant in a penal institution, namely, St Patrick’s Institution.

3. The learned trial judge was wrong in law and in fact in deciding that the detention of the applicant in St Patrick’s Institution until 18 July 1997 was appropriate having regard to the test that the best interests of the applicant was the first and paramount consideration.

4. The learned trial judge in directing that the applicant should be detained in St Patrick’s Institution until 18 July 1997 failed to properly protect and vindicate the applicant’s right to liberty pursuant to the provisions of the Constitution.

5. The learned trial judge in directing the applicant should be detained in St Patrick’s Institution until 18 July 1997 failed to achieve a correct and proper balance between the need to protect the applicant and his right to liberty pursuant to the Constitution.

Issues on appeal
The issues which arise in this appeal are:

1. Whether the High Court has jurisdiction to order the detention of the applicant;

2. If it has such jurisdiction, does the jurisdiction extend to making an order directing the detention of the applicant in a penal institution, such as St Patrick’s Institution?

3. If it has, was the jurisdiction properly exercised by the learned High Court judge?

Jurisdiction
The jurisdiction of the High Court is such jurisdiction as:

(1) is conferred by the Constitution,

(2) may be imposed by statute, and

(3) is necessary to fulfil the obligations imposed on it to defend and vindicate the personal rights of the citizen.

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Article 40.3.1° provides that:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

In the course of his judgment in People (DPP) v. Shaw [1982] IR 1 Kenny J stated in relation to Article 40.3 that:

The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws.

It is part of the court’s function to vindicate and defend the rights guaranteed by Article 40.3.

If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights.

As stated by Ó Dálaigh CJ, in the course of his judgment in State (Quinn) v. Ryan [1965] IR 70 at p. 122:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizens that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.

It was accepted by counsel on behalf of the applicant that it may be lawful in certain circumstances for the court to order the detention of a child with a view to protecting his or her constitutional rights but submitted that such power does not extend to ordering the detention of a child in a penal institution.

Constitutional rights
In this case, the constitutional rights of the applicant involved are:

1. as set forth in Article 40 of the Constitution, that no person shall be deprived of his liberty save in accordance with law, and

2. the unenumerated personal rights as set forth by Higgins CJ in the course of his judgment in G. v. An Bord Uchtála [1980] IR 32 where he stated at p. 56:

Having been born, the child has the right to be fed and to live, to be reared and educated, to have of the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State.

*250

Conflict of rights
There is undoubtedly a conflict between the constitutional right to liberty of the applicant and the order made by the learned trial judge directing his detention in St Patrick’s Institution until 18 July 1997.

In the course of his judgment in Attorney General v. X. [1992] 1 IR 1; [1992] ILRM 401 Finlay CJ stated at pp. 57/429:

I accept that where there exists an interaction of constitutional rights, the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in these instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights.

It was submitted on behalf of the applicant that in directing the detention of the applicant in St Patrick’s Institution, the learned trial judge failed to achieve a correct and proper balance between the need to protect the applicant and the applicant’s right to liberty pursuant to the Constitution.

It is clear from a consideration of the judgment of the learned trial judge that he recognised that the paramount consideration for him was the welfare of the child and on the basis of the evidence before him, he concluded that in the absence of any other suitable facility within the State the place most suitable to ensure his welfare, having regard to his needs, was St Patrick’s Institution.

The welfare of the applicant took precedence over the right to liberty of the applicant. There is ample evidence to support his finding in that regard.

It is regrettable, to say the least, that the learned trial judge, being satisfied that the welfare of the applicant required that he be detained in a safe and secure unit, as was accepted by all parties to these proceedings, was forced, by reason of the lack of any other suitable facility to order the applicant’s detention in a penal institution for a short period.

At the conclusion of his judgment, the learned trial judge said:

In conclusion may I say I am extremely unhappy at having to make the order which I have just made but of the four options available to me it is the one which, in my view, is best suited to the welfare and needs of this applicant in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to me that for the welfare of this applicant it is the least offensive and in my view his welfare will be best served by being committed there as I have ordered.

I am satisfied that:

(1) The learned trial judge had jurisdiction to make the order which is the subject matter of the appeal herein;

*251

(2) Having that jurisdiction, he exercised the same in a lawful manner, consistent with the requirements of the welfare of the applicant;

(3) He exercised such jurisdiction for a short period namely three weeks and that he was correct in so doing.

The jurisdiction which I have held is vested in the High Court is a jurisdiction which should be exercised only in extreme and rare occasions, when the court is satisfied that it is required for a short period in the interests of the welfare of the child and there is, at the time, no other suitable facility.

The exercise by the High Court of its jurisdiction in this regard should not in any way be used by the respondents in these proceedings to relieve them of their statutory obligations in regard to the applicant and they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant and if any such arrangements can be made, he should not be detained in a penal institution.

These are matters which will have to be taken into account by the learned trial judge when he resumes hearing the interlocutory application made by the applicant herein.

I would dismiss the appeal brought by the applicant against the order of the High Court.

MURPHY J

(Keane J concurring): It is important to emphasise that it has not been disputed in this Court or in the High Court that the learned trial judge had jurisdiction to order the detention of the minor in what is euphemistically described as ‘secure accommodation’. Whilst it was accepted that the restraint to be imposed on the minor should be commensurate with his capacity and propensity to abscond, it was contended that even where such factors do exist to a very significant degree that the courts would not be entitled to commit an innocent party to a penal institution.

As there is now an established practice for the High Court to commit seriously deprived, but wholly innocent, young people to some form of detention as the only means of protecting their basic rights and no argument was addressed to this Court challenging that practice, I believe that this Court must proceed with the appeal from the interlocutory order of the learned judge on the assumption, rather than a finding, that such jurisdiction exists.

Assuming that the High Court does have jurisdiction to order the detention of a young person in some establishment or institution which has not been designed to meet the needs of the child nor designated by statute for that purpose, I accept that the learned trial judge was entitled to look at committal to St Patrick’s Institution as a possible option. Having regard to the limited and unattractive choices available to the court, the needs and character of the minor, the short duration of the detention and the particular purpose which the learned judge sought to achieve, I believe that his decision can and should be upheld.

*252

In this Court all of the parties expressed the view that the detention of the minor in St Patrick’s Institution should not be continued after 18 July 1997. It is reasonable to anticipate that when this view is made known to the learned trial judge he will enquire, as he has already done, ‘What then should I do?’ It is perhaps unusual, but I believe that I should express my own view that it would be preferable to make no order at all — and recognising that that is a very unattractive course indeed — than to direct the detention of the minor in a penal institution until he attains the age of 18 years. Of course my views are in this respect in no way binding on the learned trial judge and are offered solely out of sympathy with him in the impossible situation in which he finds himself.

I would dismiss the appeal.

DENHAM J:

Appeal
This is an appeal by D.G. a minor (hereinafter referred to as the appellant) against an interlocutory order of the High Court which stated:

It is ordered that the Commissioner and members of the Garda Síochána forthwith do arrest, detain in their custody and convey the [appellant D.G.] into the custody of the governor of St Patrick’s Institution

And thereupon

It is ordered that the Governor of St Patrick’s Institution forthwith do detain in his custody the [appellant] for a period of three weeks during which time:

The [appellant] is to be subject to the discipline of the said St Patrick’s Institution.

A full psychiatric assessment is to be carried out on the [appellant] at the clinic in St Patrick’s Institution.

That the said governor do dispense with visitation restrictions in so far as is possible consonant with the good running of the institution so as to allow officials of the Eastern Health Board access to the [appellant].

And it is ordered that this matter be listed before this Court on Friday, 18 July 1997 for further review.

The appellant is thus currently detained in St Patrick’s Institution which is a penal institution. It is subject to prison rules, staffed by prison officers and the inmates are kept in cells, which are locked.

The appellant has not been charged with an offence, or been convicted of an offence, or failed to pay a fine, or been found in contempt of court. Rather, he is a minor who has brought civil proceedings against the Eastern Health Board, Ireland and the Attorney General regarding his care and accommodation.

*253

Facts
The appellant is 17 years old, his father is in the Central Mental Hospital and his mother lives what is described as a ‘chaotic lifestyle’. He has been in the care of the Eastern Health Board since he was two years old. He was placed in children’s homes until 1986 and thereafter with a foster family. In 1991 the foster placement broke down and he was placed with a carer’s family. That placement broke down because of his behaviour.

Between 1991 and 1993 he was placed in a number of residential placements which broke down due to his aggressive, violent and increasingly sexualised behaviour. In 1993 he was charged with assault and remanded to Oberstown Boys Centre. In May 1994 he was sentenced in the District Court to a term of two years’ detention in Oberstown Children’s Centre. In May 1996 he was released. He was allocated two residential placements, one urban and one rural. The policy was to alternate him between the two placements in an effort to stabilise his behaviour. These placements failed. In August 1996 the Eastern Health Board placed him in a specialised residential unit in the United Kingdom. This placement also failed. In November 1996 the appellant was convicted at Reading Youth Court of the offences of criminal damage, burglary, arson and aggravated theft of a vehicle and sentenced to nine months’ imprisonment at Feltham Detention Centre. At the request of the Eastern Health Board the Minister for Justice obtained an order from the High Court in February 1997 pursuant to the Transfer of Sentenced Persons Act 1995, directing that the balance of the appellant’s nine months sentence be served in St Patrick’s Institution. In March 1997 the appellant was released from St Patrick’s Institution. The Eastern Health Board have made attempts to accommodate the appellant. They are actively seeking to identify another specialised residential centre out of the jurisdiction in which to place the appellant.

Proceedings
On 28 April 1997 the High Court made an order appointing M.R. guardian ad litem of the appellant and giving leave to apply for judicial review. The reliefs sought in the judicial review are:

(i) A declaration by way of an application for judicial review that in failing to provide suitable care and accommodation for the [appellant] and in discriminating against him as compared with other children, the respondents have deprived the [appellant] of Constitutional rights under Articles 40 and 42 of the Constitution, with particular reference to the provisions of Article 40. 1, Article 40.3.1°, Article 40.3.2° and Article 42.5.

(ii) Mandamus by way of application for judicial review directing the respondents to provide suitable care and accommodation for the [appellant].

(iii) An injunction by way of an application for judicial review directing the *254 respondents to provide suitable care and accommodation for the [appellant].

(iv) Damages.

This application for judicial review has not yet been heard. The order in issue is an interlocutory order in the proceedings. It is unclear when the judicial review action itself will be heard. The case is listed for review on 18 July 1997.

In the interlocutory proceedings before the High Court the learned High Court judge summarised the evidence as being that the appellant is not mentally ill, but that he has a serious personality disorder, he is a danger to himself, he is a danger to others, he has a history of criminal activity and violence, he has a history of arson, he has in the past absconded from non-secure institutions, he has failed to co-operate with the Eastern Health Board and its staff, he has failed to co-operate in the carrying out of a psychiatric assessment upon him in the past.

The learned trial judge said that it appeared that there were four options open to him, namely:

(a) do nothing, i.e. release the appellant from the custody of the Eastern Health Board to fend for himself;

(b) send the appellant back to Kilnacrot;

(c) direct the appellant’s detention in the Central Mental Hospital;

(d) send the appellant to St Patrick’s Institution.

(a) On the first option the High Court held:

I am satisfied that there is a real risk of serious injury to himself if this minor is not in secure accommodation and I do not rule out the possibility of injury to self even resulting in his death. In those circumstances I am not prepared to accede to the application of the Eastern Health Board to make no order and to release him from its custody.

(b) On the option that he be sent back to Kilnacrot the learned trial judge noted that the appellant could only be guaranteed a place there for a week and he pointed to the evidence from the Eastern Health Board that the position there is no longer workable and is positively dangerous to himself and others. He accepted that the appellant was a danger to himself and other minors and staff there, but that the appellant’s first preference was to be further detained in Kilnacrot.

It has also been said to me that the next friend will attempt to secure his co-operation to having an independent psychiatric assessment carried out on him whilst there. She is prepared to co-operate in that regard by even staying overnight so as to try and facilitate this happening. But I cannot ignore the fact that he has wholly failed to co-operate with the Eastern Health Board in its *255 attempts to carry out such assessments. I have no basis for believing that he will prove any more co-operative in the future. In these circumstances I have reluctantly come to the conclusion that his welfare is no longer served by being detained in Kilnacrot.

(c) The third option — detention in the Central Mental Hospital — was the preferred option of the State when the matter was argued before the High Court. However, Dr Smith did not consider it suitable. It would also be very negatively regarded by the appellant. On the evidence the High Court concluded that a remand to the Central Mental Hospital is not the appropriate order to make.

(d) The fourth option — that he be sent to St Patrick’s Institution — was adopted by the High Court, although the learned High Court judge acknowledged that it was a penal institution and that it is most undesirable that persons other than convicted criminals or prisoners on remand should be sent there. He held, having noted the constitutional rights of a child,

Given these rights of the [appellant] I have to ask myself how can they be vindicated in the present case and I have, with considerable reluctance, come to the conclusion that it can only be done by directing his detention in St Patrick’s Institution. I consider that I do have jurisdiction to do so and in doing so I do not accept that I am breaking new ground.

The learned trial judge referred to the judgment of Geoghegan J in D.T. v. Eastern Health Board High Court, 24 March 1995 where he stated:

I am satisfied for the reasons which I indicated in the N. case that the State owes a constitutional duty to the [appellant], D.T., to cater for her needs. But the situation in her case was so extreme that I acceded to a health board request that I make an order authorising the Garda Síochána to take her into detention and bring her to Oberstown House where she could be kept in confinement and receive suitable care. I took the view that the problem was so extreme that even though there was no express statutory power enabling me to make that interim order, I was satisfied having regard to the principles enunciated in O’Flaherty J’s judgment in the Supreme Court in M.F. v. Superintendent Ballymun Garda Station [1991] 1 IR 189 at p. 205, that since such an order was necessary to vindicate the constitutional rights of the child the Constitution empowered me to make it.

The learned trial judge pointed out that Geoghegan J in the recited case made the detention order in the case of the 12 year old whom he sent to a suitable place of confinement, Oberstown House. Returning to the appellant in this case Kelly J stated:

In this case the [appellant] is 17 years old. I consider that the place which is best suitable to ensure his welfare and having regard to his needs is St Patrick’s *256 Institution. I have come to that view certainly in so far as the short term is concerned and I am justified in that view by the evidence … I am therefore today going to make an order for the detention of the [appellant] in St Patrick’s Institution until this day three weeks.

The learned trial judge stated that during that time in St Patrick’s Institution the appellant will:

(1) Be subject to the normal discipline of that place.

(2) He has to have a full psychiatric assessment made on him by the psychiatric staff in the clinic attached thereto and in respect of which I had evidence from Dr Smith.

(3) Between this and then there is to be liaison between the Eastern Health Board staff and the authorities of St Patrick’s Institution.

(4) By Wednesday, 16 July the court is to be put into possession of a report from the psychiatric staff at St Patrick’s Institution and from the Eastern Health Board as to what progress, if any, has been made and as to the general well being of the [appellant].

(5) Between this and then the Eastern Health Board is to continue to try and find a place suitable for the appellant’s needs out of the jurisdiction.

(6) The matter will be reviewed by this Court on 18 July 1997.

In conclusion may I say I am extremely unhappy at having to make the order which I have just made but of the four options available to me it is the one which, in my view, is best suited to the welfare and needs of the [appellant] in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to me that for the welfare of this applicant it is the least offensive and in my view his welfare will be best served by being committed there as I have ordered.

Appeal
The appellant has appealed from the above order. In essence he submitted that the learned High Court judge has no jurisdiction pursuant to the inherent jurisdiction of the High Court to commit him to a penal institution. The Eastern Health Board also submitted that the order detaining the appellant in St Patrick’s is a step too far. The State submitted that while the appellant should not be detained in St Patrick’s Institution after 18 July the learned High Court judge had jurisdiction on the evidence to exercise his discretion as he did. All are agreed that the appellant should not be detained in St Patrick’s Institution after 18 July 1997.

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Statute
The Eastern Health Board has a legal duty to provide social services. The Child Care Act 1991 sets out the statutory duties of a health board in relation to the care and protection of children residing in its administrative area. S. 2(1) defines a ‘child’ as:

a person under the age of 18 years other than a person who is or has been married.

S. 3 provides, inter alia:

(1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

(2) In the performance of this function, a health board shall—

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise—

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration having regard to his age and understanding, to the wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

S. 4(3)(a) provides:

Where a health board has taken a child into its care under this section, it shall be the duty of the board—

(a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child, …

S. 36 states:

(1) Where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests—

(a) by placing him in with a foster parent, or *258

(b) by placing him in residential care (whether in a children’s residential centre registered under Part VIII, in a residential home maintained by a health board or in a school or other suitable place of residence), or

(c) …

(d) by making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper.

(2) …

(3) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability.

Detention of a child
The High Court has developed a jurisprudence in its inherent jurisdiction to direct the detention of children on an interlocutory basis. This inherent jurisdiction has been considered in a number of cases: F.N. v. Minister for Education [1995] 1 IR 409; [1995] 2 ILRM 297; G.L. v. Minister for Justice High Court No. 398 JR (Geoghegan J) 24 March 1995, D.T. v. Eastern Health Board High Court (Geoghegan J) 10 February 1995, D.T. v. Eastern Health Board High Court (Geoghegan J) 24 March 1995, D.D. v. Eastern Health Board High Court 1995 No. 120 JR (Costello P) 3 May 1995, P.S. v. Eastern Health Board High Court (Geoghegan J) 27 July 1995, Comerford v. Minister for Education [1997] 2 ILRM 134.

The matter of an inherent jurisdiction in the High Court to order the detention of children in child care institutions to protect their welfare has not been argued and is not an issue before this Court. The issue in this case is whether there is an inherent jurisdiction in the High Court to order the detention of a child in a penal institution when that child has neither been convicted of an offence nor charged with an offence.

Constitution
Relevant articles of the Constitution include:

Article 40.1:

All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

Article 40.3.1°:

The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

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Article 40.3.2°:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property of every citizen.

Article 40.4.1°:

No citizen shall be deprived of his personal liberty save in accordance with law.

Article 42.4:

The State shall provide for free primary education and shall endeayour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

Article 42.5:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Thus among the rights of the appellant are included the right to equality, to constitutionally unenumerated personal rights, to the right of the person, to the right of good name and to the right of personal liberty. These rights the appellant shares with adults. As a child he has additional rights which are recognised and protected by the Constitution.

Decision of the High Court
The learned trial judge was correct in taking the view that he must vindicate the appellant’s constitutional rights by ensuring, as best he could, the promotion of the child’s welfare. His next decision, that the appellant be detained in a penal institution, is the core of the appeal to this Court.

Constitutional rights
In my view the decision to detain the appellant in a penal institution breached a number of his constitutional rights.

(a) Liberty

The appellant has been deprived of his personal liberty by the detention order. There being no statute establishing the power of such detention the High Court exercised its inherent jurisdiction. In such exercise it was required to act in *260 accordance with the Constitution.

The deprivation of liberty of a minor to provide safe, secure welfare and education in a child’s residential home or institution specifically run for the care of children is fundamentally different to loss of liberty in a penal institution. A deprivation of liberty by being placed in a child’s residential institution brings into consideration the ‘differences of capacity, physical and moral, and of social function’. It also encompasses the fundamental right of the child to his welfare and to his right to education. It is a harmonising of children’s conflicting rights of welfare and liberty. However, detention in a penal institution is not such a harmony.

(b) Moral welfare

The function of a penal institution is to detain people who have been convicted of a crime or are charged with a crime. There is an element of criminality and punishment.

In this case the child is being contained in a penal institution, not a child care institution. There is a moral basis to the institution that the prisoners have done wrong or are accused of doing wrong. This is described by the word penal, which is defined in the Oxford English Dictionary as:

penal … of or belonging to punishment … penalty … pertaining to or related to punishment … having as its object the infliction of punishment, punitive, prescribing or enacting the punishment, punitive; prescribing or enacting the punishment to be inflicted for an offence or transgression….

Containment of a child in an institution for the welfare of children which is a school, with a staff of teachers and social workers and which is an institution of education and development cannot be compared to the detention of a child in a penal institution. The appellant’s moral welfare is intruded upon by being placed in a punishment institution when he has not been charged or convicted of an offence. Further, the moral development and welfare of the child is invaded in that it will become more difficult to teach concepts of right and wrong and fundamental moral obligations and duties if he has suffered detention in an institution of punishment when he has done no wrong. The appellant’s moral welfare has thus been breached by this detention order.

(c) Equality

No adult could be ordered to a penal institution in circumstances such as those existing here. It would be preventative detention, which is unconstitutional. Thus the child is not equal to the adult. However, the Constitution clearly envisages equality being affected by differences in capacity. Thus, the mere fact that such an order could not be made of an adult does not per se render it unconstitutional.

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However, the rationale for such loss of equality by the child is that the loss of liberty is for the welfare of the child. Consequently loss of liberty to enhance education and the training and development of a child is of a different character. The function of a children’s institution is education, correction and care, it relates to the capacity of the person, it is not delivering a punishment. It is of the essence of the institution that it be educational and caring and consequently fundamentally a school or child care establishment staffed by appropriate personnel. In contrast a penal institution is an institution for punishment staffed by prison officers. It may well have medical, educational and training facilities but they are not the raison d’être of the institution.

A deprivation of liberty by placement in a child care institution carries with it the concept of the welfare of the child. A prison does not. Thus the inequality suffered by the child by being placed in a penal institution in such circumstances relative to the position of an adult is unconstitutional, the appellant’s right to equality has been breached by this order. The rationale which exempts a child care institution does not apply. Further, approaching the matter as to equality between children, it must be queried whether a child from a different background, who brought a civil action, would find himself ordered to be detained in a penal institution.

(d) The person and good name

The appellant’s rights of person and good name are infringed by being placed in a penal institution when he has neither been charged with nor convicted of an offence.

(e) Bodily integrity and social welfare

The bodily integrity of the appellant has been endangered. The appellant is currently deprived of his liberty, he is in an institution in the unique position where he alone of the inmates is neither charged nor convicted of an offence. This places him in an intolerable situation, in fact he spends his time locked in a cell. His social welfare is thus also impinged.

The Supreme Court had the benefit of the psychiatric report prepared pursuant to the order the learned High Court judge. From it we are told that nothing has changed, the appellant has an abnormal and disturbed personality but it is not treatable. He is not mentally ill.

Decision
The decision should achieve a harmonious balance of the appellant’s constitutional rights. If that is not possible a hierarchy of rights must be established and a priority applied.

It is for the courts to vindicate the constitutional rights of the appellant. In this the learned trial judge was correct. Counsel for the appellant did not submit *262 that detention of children is necessarily unlawful. He submitted that this detention in this place for this reason for this appellant is unlawful. It is thus a question of seeking a harmonious balance between certain rights of the child and, if necessary, determining a priority. The appellant’s loss of liberty was illustrated in the court as the child was brought to court in handcuffs and only released on application to the court by his counsel.

I would allow the appeal. By ordering the appellant to be detained in a penal institution the learned High Court judge exceeded his jurisdiction and breached the appellant’s constitutional rights.

The courts have a duty to protect and vindicate the appellant’s constitutional rights. He has a bundle of rights as to his person and welfare including the right to life, to protection of the person, to liberty, bodily integrity, equality. The State has the constitutional obligation to supply the place of the parents, but with due regard for the rights of the child.

The Child Care Act 1991 does not permit any type of detention by the health board. The health board has the care of the child but the child’s rights must be preserved. Finlay P in G. v. An Bord Uchtála [1980] IR 32 stated (at p. 44) that the child:

… likewise has a constitutional right to bodily integrity and has an unenumerated right to an opportunity to be reared with due regard to his religious, moral, intellectual, physical and social welfare. The State, having regard to the provisions of Article 40.3.1° of the Constitution must by its laws defend and vindicate these rights as far as practicable.

The appellant has the right to be reared with due regard to his religious, moral, intellectual, physical and social welfare; to be fed, accommodated and educated; to suitable care and treatment; to have the opportunity of working, and of realising his personality and dignity as a human being.

For the purpose of this action it has been accepted that there is an inherent jurisdiction in the courts to order the containment of a child. Cases previously referred to have so ordered. Thus the liberty of children has been breached and a harmonising of rights applied favouring the physical and mental welfare of the child. Children have been ordered to:

(a) Glen House (a health board institution for housing the more difficult children): F.N. v. Minister for Education.

(b) Trinity House: G.L. v. Minister for Justice and

(c) a unit or institution managed by the Eastern Health Board: D.D. v. Eastern Health Board.

These cases were situations where curtailment of a child’s liberty was ordered for the purpose of placing him in a specialised child care institution. It was part of the care of the child, as envisaged in the best interest of the child, that the *263 child be contained. The basic concept of care of a child was advanced through a child care institution. In catering for the welfare of the child and balancing the constitutional rights of the child the loss of liberty was considered appropriate to vindicate the child’s other constitutional rights. The welfare of the child was the first and determining factor for the courts, as it should be in all cases.

The learned trial judge was placed in a most difficult position. The evidence so far suggests that the child needs a secure and appropriate unit. No such unit exists in the State. The Eastern Health Board has a statutory duty. The child has constitutional rights and needs care. His personality is such that this makes it very difficult. But that very difficulty is why the Eastern Health Board has care of this child.

The learned trial judge cannot conjure up a secure accommodation unit. That responsibility does not lie with the courts. However, the courts must protect and vindicate the constitutional rights of the child. I accept for the purpose of this case (the issue was not argued) the inherent jurisdiction of the High Court to order the detention of a child in a child care institution. However, I am satisfied that it is a step too far, an invasion of the child’s rights as to moral, intellectual, physical and social welfare, to order his detention in a penal institution in the stated absence of appropriate accommodation. Also, it is a breach of his right to liberty, equality and bodily integrity. And it must be stressed once again that this order of detention of the appellant arose in civil proceedings brought by the appellant in relation to his care and accommodation by the respondents. The difficulties of the Eastern Health Board are apparent; however, the board should address its statutory duties and the learned High Court judge should proceed on that basis.

The learned High Court judge exceeded his jurisdiction, the order breaches the constitutional rights of the child. Consequently, I would allow the appeal.

The order of the court should be to release the appellant, that immediately thereafter counsel for all parties should apply to the High Court for an appropriate order as to the care and accommodation of the appellant. In making this order I bear in mind (a) the statement of counsel for the Eastern Health Board that the Eastern Health Board will continue to provide for the appellant in accordance with its duties, and (b) that this case is at an interlocutory phase.