Appeal against admission order allowed despite renewal order because renewal merely extends original order.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 101

Record Number: 2017/3

Peart J.

Hogan J.

Gilligan J.

BETWEEN:

I.F.

APPELLANT

- AND -

THE MENTAL HEALTH TRIBUNAL,

THE MENTAL HEALTH COMMISSION,

IRELAND,

THE ATTORNEY GENERAL

RESPONDENTS

- AND -

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 18TH DAY OF APRIL 2018

1. I have had the opportunity of reading in advance the judgment which is about to be delivered by Mr Justice Hogan, and I am in

complete agreement with it. However, I would wish to add some remarks of my own in relation to one matter.

2. As Mr Justice Hogan has stated at para. 8 of his judgment, the issue that arose before the President of the Circuit Court at the

hearing of the appellant’s appeal against the Admission Order dated the 7th October 2015 pursuant to s. 19 of the Mental Health Act,

2001 (“the 2001 Act”) was whether that appeal could proceed in circumstances where that admission order had been replaced by the

subsequent renewal order made on the 27th October 2015.

3. In addition to the reasons given by Mr Justice Hogan with which I am in agreement, there is another reason why in my view the

appellant was entitled to have her appeal against the making of the admission order determined notwithstanding the existence by the

hearing date of a renewal order.

4. In my view on a correct reading of s. 15, subs. (1) and (2) of the 2001 Act the renewal order, despite being so described in the

Act, merely extends the life of the admission order. It does not replace it. Those subsections provide:

“15(1) An admission order shall authorise the reception, detention and treatment of the patient concerned and shall

remain in force for a period of 21 days from the date of the making of the order and subject to subsection (2) and section

18(4), shall then expire.

(2) 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.”

5. The plain meaning of these provisions is that an admission order expires after 21 days unless it has been extended by a renewal

order. Put alternatively, where a renewal order is made within that period of 21 days, the admission order does not expire, and

continues to be the lawful basis for the patient’s detention. It has simply had its life extended by the renewal order.

6. It is clear that there is nothing within the renewal order itself that authorises the patient’s detention as an involuntary patient. The

consultant psychiatrist responsible is simply certifying that a lawful basis for extending the admission still exists, and it extends the

admission order in such circumstances.

7. Section 19 of the 2001 Act provides that the patient may appeal to the Circuit Court against “a decision of a tribunal to affirm an

order made in respect of him or her …”. That “order” may be an admission order or a renewal of that admission order. In the present

case the applicant lodged an appeal against the decision of the tribunal to affirm the admission order. In my view, given what I have

concluded above as to the meaning of s. 15(1) and (2) of the 2001 Act, the admission order, by the date the matter came before the

President of the Circuit Court, had had its life extended by the renewal order made between the date of the tribunal’s decision and

the date of the appeal hearing. Therefore it had not been replaced by the renewal order. It continued to be the basis of the patient’s

detention, and I can see no reason by reference to these provisions why the applicant was not entitled to have her appeal

determined, and/or why the Circuit Court no longer had jurisdiction to hear her appeal.

8. If it turned out that the appeal was allowed, on the basis perhaps that on the appeal date the Court was satisfied on the evidence

that the condition of the appellant had improved to the point that there was no longer a basis for detaining her, then it would follow

that the renewal order would have no relevance, because it has simply extended the life of an admission order that has been revoked.

The renewal order has no free-standing existence or legitimacy.

9. I should add some remarks about earlier judgments that have referred to a renewal order as purporting to renew the detention of,

or be the basis for the lawful detention, of the patient. See for example O’Neill J. at para. 17 in W.Q. v. Mental Health Tribunal [2007]

3 I.R. 755 where he stated:

“The renewal order of the 2nd January, 2001, which purported to renew the detention of the applicant pursuant to s.

15(2) of the Act of 2001, was made by Dr O’Leary”.

Further on at para. 22 of W.Q. O’Neill J. stated:

“Whether that be so or not [i.e. the failure to have convened a mental health tribunal was necessary on the particular

facts of W.Q.] it is clear that the detention of the applicant based upon the purported renewal order of the 2nd January,

2007, was unlawful.”

10. I can usefully refer also to the judgment of Kearns J. (as he then was) in the Supreme Court in E.H. v. Clinical Director of St.

Vincent’s Hospital [2009] 3 I.R. 774 where at para. 11 when summarising the facts of that case he stated:

“On the 10th December, 2008, the renewal order under which the applicant was being detained in St. Vincent’s Hospital

was revoked …”.

11. In neither W.Q. nor E.H. was the court considering the question of whether a renewal order had some free-standing status or

whether it was simply extending the life of the detaining order, i.e. the admission order. The references to the renewal order being the

basis for the detention or purporting to renew the detention is entirely incidental to the issues being determined in those cases, and

appears to arise from the fact that for whatever reason the Oireachtas, perhaps unfortunately and indeed in some ways misleadingly,

chose to describe an order which merely extends the life of an admission order as being “a renewal order”. The use of the word

“renewal” suggests that what went before has come to an end. But, as I have pointed out, s. 15 (1) of the 2001 Act in effect

provides that it comes to an end ONLY in the event that it is not extended by a renewal order. The renewal order might just as easily

have been described as an “extension order”, whereby the meaning would not have tended to mislead. However, the use of the

phrase “renewal order” is mere nomenclature. The meaning of the section is clear. The renewal order made under s. 15(2) extends the

life of the admission order made under s. 15(1). That is all it does. It does not replace or of itself authorise the detention of the

patient. The basis for detention remains the admission order, albeit extended.

12. In my view this alone provides a basis for allowing the applicant’s appeal. Having said that, I am also in agreement with the

careful analysis of the relevant provisions carried out by Mr Justice Hogan in his judgment.