Supreme Court allows detention of voluntary patient by implying statutory provision to cure legislative gap.

[2001] IESC 14

THE SUPREME COURT

334/00

McGuinness J

Hardiman J.

Geoghegan J

IN THE MATTER OF THE MENTAL TREATMENT ACTS, 1945-1961

and

IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION

Between:

CLIVE GOODEN

Appellant/Applicant

and

WATERFORD REGIONAL HOSPITAL

and

ST. OTTERANS HOSPITAL

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 21st day of February, 2001.

1. I agree with the judgment of Mrs. Justice McGuinness in this case. Specifically, I strongly agree with what she has said about the

need for statutory initiatives in this area and her hope that legislation now in train will significantly clarify and improve the position of

all parties involved in the mental treatment area.

2. I wish to add a few words of my own about the techniques of construction the Court has applied in this case.

3. At the end of her judgment, McGuinness J. has said:-

“In addition I would point out that the facts in the instant case illustrate further weaknesses in the current legislation. As

I have noted earlier in this judgment the situation where a reception order is required for a voluntary patient who has,

contrary to his own medical interests, given notice of discharge from hospital must occur relative frequently. No express

provision is made in the Act of 1945 for this situation. It has been necessary for the Court to imply such a provision. This

is not a satisfactory situation”.

4. There is no doubt that the medical and Social Welfare authorities involved in this case have acted constructively and benevolently

both in the interests of the Applicant and in the wider public interest. It is most unfortunate that the validation of these actions in

law has involved complex debate about the interpretation of the statutory provisions concerned. Furthermore, it has involved the

application to those provisions of the sophisticated techniques of construction described in the judgment of the learned McGuinness J.

and illustrated by cases such as River Wear Commissions v. Adamson [1877] 2 App Cas 743, Nestor v. Murphy [1979] IR 326, Pepper

v. Hart [1993] 1 AER 432 and DPP (Ivers) v. Murphy [1999] 1 ILRM 46.

5. Moreover, the result arrived at in this case has involved the application of different techniques of construction to two of the

sections involved. In construing the word “received” where it occurs in Section 184(1) of the Mental Treatment Act, 1945 as

amended (“where it is desired to have a person received and detained as a temporary patient and as a chargeable patient in an

approved institution......”) an extended construction was required in order to apply the section to a person already physically present

in the institution. On the other hand, the circumstances of the case required a literal construction to be applied to the words

“convey” where it occurs in Section 5(1)(a) of the Mental Treatment Act, 1953. If the section were otherwise interpreted, the

detention of the Applicant would have been invalid for non compliance with the later provisions of Section 5.

6. I believe that these techniques and their varied applications are justified in this case on the principle stated by Lord Griffiths in

Pepper v. Hart, as follows:-

“The rules of construction are part of the tools of the Court. The literal rule should not be applied if it obtains a result

which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be

read in the section without rewriting the section then this is the appropriate interpretation for the Court to take”.

7. I believe however that in construing the statutory provisions applicable in this case in the way that we have, the Court has gone

as far as it possibly could without rewriting or supplementing the statutory provisions. The Court must always be reluctant to appear

to be doing either of these things having regard to the requirements of the separation of powers. I do not know that I would have

been prepared to go as far as we have in this direction were it not for the essentially paternal character of the legislation in question

here, as outlined in In Re Philip Clarke [1950] IR 235. The nature of the legislation, perhaps, renders less complicated the application

of a purposive construction than would be the case with a statute affecting the right to personal freedom in another context. The

overall purpose of the legislation is more easily discerned and, where the medical evidence is unchallenged, the conflicts involved are

less acute than in other detention cases. 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.