High Court allows judicial review where Mental Health Tribunal failed to give adequate reasons for affirming involuntary detention.

THE HIGH COURT JUDICIAL REVIEW [2025] IEHC 685 Record No. 2024/1328 JR

BETWEEN

KW

APPLICANT

-AND-

MENTAL HEALTH TRIBUNAL

RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 5th day of December, 2025

INTRODUCTION

1. The net issue for determination in these proceedings is whether a Mental Health Tribunal (hereinafter “MHT”) established under the Mental Health Act, 2001 (as amended) (hereinafter “the 2001 Act”) to review the lawfulness of the Applicant’s involuntary detention under ss. 3 and 14 of the 2001 Act was in breach of a duty on it (whether pursuant to s. 18(5) of the 2001 Act or as a matter of constitutional justice) to give adequate reasons for its decision to affirm involuntary admission following a

hearing on the 30th of July, 2024, thereby demonstrating that it applied the correct legal test to the evidence in arriving at its decision.

ANONYMISATION OF JUDGMENT

2. A hearing of the MHT is conducted in private in accordance with s. 49(9) of the 2001 Act but no similar specific provision has been made with regard to judicial review proceedings taken in respect of the conduct of the hearing or the decision of the MHT.

3. At leave stage the High Court was satisfied to make an order pursuant to s. 27(1) of the Civil Law (Miscellaneous Provisions) Act, 2008 (hereinafter “the 2008 Act”)

prohibiting the publication or broadcast of any matter relating to the proceedings which would or would be likely to identify the Applicant and her condition in these proceedings.

4. The order under s. 27(1) of the 2008 Act has been continued on consent of the parties.

I am satisfied in light of the sensitive and private nature of the evidence in this case as to the Applicant’s medical condition, the likely undue distress that disclosure of information identifying her as a person with that condition would cause and my view that the making of the order is not prejudicial to the interests of justice, that it is appropriate to maintain a prohibition on the publication of identifying matter.

5. In the circumstances of this case, it is my view that a proper balance between the requirements of Article 34.1 of the Constitution as to the administration of justice in public and the personal and privacy rights of the Applicant safeguarded under Article

40.3 of the Constitution is achieved by the publication of a judgment which sets out my

decision and the reasons for it, without disclosing the identity of the Applicant as a person with her condition.

6. Accordingly, in keeping with the order made under s. 27(1) of the 2008 Act which order is being continued, the identity of the Applicant, the location of the Approved Centre and the medical personnel involved in the Applicant’s care are not disclosed in this judgment.

BACKGROUND

7. The Applicant has a long-standing diagnosis of Anorexia Nervosa.

8. An application was made for a recommendation for involuntary admission of the Applicant on the 15th of July, 2024, pursuant to the provisions of s. 9 of the 2001 Act. The application was made by an authorised officer who gave as a reason for making the application:

“Diagnosis of Anorexia Nervosa. Self-neglecting, not eating, losing weight.

Condition now becoming life threatening, disengaging from services”

9. A recommendation was made for the Applicant’s involuntary admission on the same date, pursuant to the provisions of s. 10 of the 2001 Act. As recorded on the Form 5 completed by a registered medical practitioner in making the recommendation, the Applicant’s clinical description at that time was noted as:

“History of Anorexia Nervosa. She has refused treatment and admission which is necessary to prevent further deterioration and possible death. She expressed suicidal ideation and her lack of insight into condition.”

10. The Registered Medical Practitioner confirmed on the Form 5 that her recommendation was based on s. 3(1)(b) of the 2001 Act.

11. An admission order was made by a consultant psychiatrist at the Approved Centre on the 17th of July, 2024 (hereinafter “the Treating Consultant Psychiatrist” to distinguish him from the Independent Consultant Psychiatrist appointed by the Mental Health Commission under s. 17 of the 2001 Act), pursuant to the provisions of s. 14 of the 2001 Act by completing Form 6. The Admission Order was stated to have been made on the basis that in the opinion of the Treating Consultant Psychiatrist, as recorded on the Form 6, the Applicant was suffering from a mental disorder within the meaning of s. 3(1)(a) of the 2001 Act. In setting out a clinical description of the Applicant’s mental disorder at that time, the Treating Consultant Psychiatrist noted:

“[Patient Name] is aged [Age given] and lives with her son [Age given].

She has presented pronounced weight loss (currently 36kgs) losing 12 k.g.

during 2024. B.M. I. = 14. She has restricted calorie consumption (small cup of bran flakes daily). Currently she is weak, unsteady with muscle wasting. She has a distorted view of herself. Diagnosis: Anorexia Nervosa is setting of trauma (trauma specified). Little insight into medical seriousness of her condition.”

12. The hospital records subsequently made available to the MHT as exhibited before me record that the Applicant was admitted with assistance from the Gardaí. They record that she was in a heightened and aggressive state upon admission resulting in the initiation of physical restraint following risk assessment. It appears from the hospital records that this was because she was deemed to pose an immediate risk of harm to herself and others.

13. At the time of her admission and in the days afterwards, the Applicant is recorded in the hospital notes as complaining of chest pain, headache and weakness. It is noted in the records that she raised concerns with staff as to whether she was dying and whether her organs were failing her. While refusing fluid and food, she suggested that she needed a drip to rehydrate.

14. It appears from the hospital notes that as of the 17th, 18th and 19th of July, 2024, the medical view was that the Applicant needed re-feeding but it was not considered urgent by her medical team. It was noted that her consent to treatment fluctuated several times a day and her insight also changed during the day. A preference to obtain a court order, if possible, was noted on the file and various entries suggest this was being progressed. Over the days following her admission, entries record that a bed in the general hospital was awaited.

15. By the 22nd of July, 2024, the hospital chart records the Applicant’s frustration and distress that nothing was being done. It was noted that she wished to leave the Approved Centre and was by then refusing to transfer to the General Hospital.

Indeed, on the 22nd of July, 2024, it is noted that she forcibly tried to leave the Approved Centre.

16. On the 24th of July, 2024, the High Court (Heslin J.) granted orders to the HSE in respect of the clinical/non-psychiatric treatment of the Applicant pursuant to the inherent jurisdiction of the High Court (hereinafter “the Treatment Orders”). The Treatment Orders made pursuant to the inherent jurisdiction of the High Court were not made available to me. I understand from the parties that the Treatment Orders made related to treatment only, not detention. These separate High Court proceedings were adjourned to the 30th of October, 2024. I have not seen the papers in respect of the inherent jurisdiction proceedings.

17. Entries in the medical file confirm that the Treatment Orders were obtained on the 24th of July, 2024, but it appears from the hospital records that the Applicant did not transfer to the General Hospital until the evening of the 25th of July, 2024. Over the following days she was advised bed rest as food was introduced through a nasogastric tube and she received 2:1 nursing care.

18. A report was obtained from an independent consultant psychiatrist dated the 26th of July, 2024, pursuant to s. 17 of the 2001 Act. This report was informed by an examination of the Applicant on the 21st of July, 2024, an interview with the Treating Consultant Psychiatrist on the 26th of July, 2024 and the hospital records.

The Independent Consultant Psychiatrist recorded his view that the Applicant was still suffering from a mental disorder within the meaning of s. 3(1)(a) of the 2001 Act. He queried in his report whether the High Court Order took precedence over the Admission Order.

19. In his report, the Independent Consultant Psychiatrist also noted rapid weight loss over the preceding two months, a refusal of hospital admission for refeeding prior

to involuntary admission and that the Applicant had lost four pounds since admission. He observed:

“Though she knows she has been losing weight due to not eating and is at risk she is now refusing to go to the general hospital when a bed becomes available because she was delayed in the psychiatric hospital waiting for a bed.”

He added that the Applicant was:

“unwilling to increase nutritional intake even though aware of medical risk.”

20. Severe physical effects of a rapid refeeding programme in hospital in terms of renal, GI and cardiac complications were identified by the Independent Consultant Psychiatrist who noted the need for medical supervision and the fact that an application was “being made to the High Court”. He also noted ongoing weight loss and very low BMI. He referred to “a comprehensive report on the file for the High Court” (this report prepared by the Treating Consultant Psychiatrist is not in evidence before me before in these proceedings) concluding that the Applicant:

“Still fulfils criteria 3(a) of the MHA 2001 as amended.”

21. A MHT hearing was held on the 30th of July, 2024. The Applicant attended in person together with her legal representative as did the Treating Consultant Psychiatrist.

Following the hearing the MHT (composed of lawyer, psychiatrist and layperson)

affirmed the Admission Order.

22. At the end of the hearing the MHT affirmed the Admission Order. Section 3(1)(a)

of the 2001 Act was identified in separate places on the formal “Record of the MHT Proceedings”, prepared pursuant to s. 49(6)(j) of the 2001 Act and on the Form 8 completed under s. 18 of the 2001 Act affirming the Admission Order, as being the basis upon which the Admission Order was affirmed. The decision and the reasons for it were set out in writing as part of the record under para. 17 of the “Record of the MHT Proceedings.”

23. For completeness, it should be noted that following the decision of the 30th of July, 2024, affirming the Admission Order, a Renewal Order was made on the 6 th of August, 2024. The MHT subsequently affirmed this Renewal Order on the 22nd of August, 2024 and this decision was appealed to the Circuit Court with a return date st of the 22nd of October, 2024. The Renewal Order was revoked on 21 of October, 2024. These proceedings concern the lawfulness of the earlier MHT Decision on the 30th of July, 2024, to affirm the Admission Order then in force.

MHT DECISION AND REASONING

24. The MHT Decision made on the 30th of July, 2024, set out an overview of the various forms and medical reports (Forms 2, 5 and 6 and the s. 17 report of the Independent Consultant Psychiatrist). The decision also referred to the High Court Treatment Orders permitting the patient’s medical treatment (including nasogastric feeding)

and s. 22(3) of the 2001 Act providing for transfer to a hospital of a patient admitted pursuant to an admission order under the 2001 Act.

25. The Decision noted the attendance of the Applicant with her legal representative (although the wrong name for the legal representative was noted, it was correctly recorded on the attendance record) and of the Treating Consultant Psychiatrist at the hearing.

26. The Decision recorded the evidence of the Treating Consultant Psychiatrist to the effect that the patient had a diagnosis of severe and enduring Anorexia Nervosa. His evidence is further noted as being that the Applicant was lacking insight and had significantly impaired judgement. The Decision records that the Treating Consultant

Psychiatrist, in evidence, indicated that the Applicant required inpatient care at the Approved Centre, with treatment in SMU, as per the Treatment Orders made on the 26th of July, 2024 and “will benefit from same”. It is further recorded that the Treating Consultant Psychiatrist was of the opinion in his evidence that the Applicant fulfilled the criteria of s.3(1)(a) of the 2001 Act on the date of the hearing. It was his evidence that the Applicant did not have the capacity to be made voluntary at that time.

27. The record of the Decision also records a submission by the Applicant’s Legal Representative with reference to A.A. v Clinical Director of the Ashlin Centre [2024] IEHC 408 and A.R. v. Department of Psychiatry Connolly Hospital [ 2024] IEHC 440. It was submitted that the Form 8 had not complied with the requirements identified in A.A.

and that in consequence the Admission Order should be revoked.

28. Under the heading “Matters considered by Tribunal”, it is recorded that the MHT considered the evidence of the Treating Consultant Psychiatrist, the s. 17 Report of the Independent Consultant, the Applicant’s Hospital Notes, the statutory forms, the representations of the Applicant’s Legal Representative and the Applicant's own presentation at Tribunal. It is further recorded that the MHT viewed the Affidavit of the Treating Consultant Psychiatrist in the High Court application (the latter is not in evidence before me).

29. It was noted that the Applicant was “most pleasant, articulate and engaging with the Tribunal. She was most complimentary about her RCP, treating nurses and staff”. The Applicant’s evidence in respect of the Admission Order, if any, is not noted down by the MHT but the MHT recorded that they took account of the physical appearance of the Applicant noting “considerable, concerning weight loss, which hopefully will be ameliorated by the treatment proposed.”

30. Having set out the matters considered, the MHT expressed itself satisfied that the Admission Order met the requirements as set out in A.A. v. Clinical Director of the Ashlin Centre in that it disclosed why the Admission Order was made. In particular, the MHT was satisfied that the diagnosis was specific, it was “very clear that it was likely there would have been a serious deterioration in her condition” and the “full details of the physical parameters of Anorexia Nervosa were provided as indicated by [Name of Consultant Psychiatrist] in para. 8 of the Admission Order.”

31. As regards whether the Applicant continued to meet the criteria for involuntary admission, the MHT set out its findings as follows:

“[t]he Tribunal finds that the Patient is suffering from a Mental Disorder within the meaning of section 3(1)(a) requiring treatment in this approved centre and [name] Hospital.”

32. The reasons for the decision were then set out under the heading “Reasons” as follows:

“The Tribunal is satisfied on the evidence presented that on this date:-

(a) The Patient remains extremely unwell and fulfils the criteria of a Mental Disorder.

(b) The risks to the Patient if discharged as outlined by the Independent Psychiatrist and the Responsible Consultant Psychiatrist are serious.

(c) The Patient's best interest is served by inpatient care and treatment in this approved centre and (d)That inpatient care and treatment is likely to benefit or alleviate her condition to a material extent.”

PROCEEDINGS

33. Proceedings by way of judicial review were commenced by filing papers in the Central Office of the High Court on the 24th of October, 2024, challenging the lawfulness of the MHT Decision to affirm the Admission Order made on the 30th of July, 2024. The proceedings were commenced on foot of leave granted to proceed by way of judicial review based on the Applicant’s Solicitor alone (Gearty J.) which permission was apparently sought as there was some doubt as to the Applicant's capacity. Before the leave application proceeded to hearing, however, the

Applicant swore her own affidavit to ground the present proceedings. The Applicant’s medical file and all statutory forms are exhibited in the affidavit of the Applicant’s Solicitor.

34. Leave to seek relief by way of judicial review was granted by order (Gearty J.) on the 9th of December, 2024. The primary substantive relief for which leave was granted was an Order of Certiorari quashing the decision of the MHT dated the 30th of July, 2024. Leave to seek declaratory relief to the effect that the application for involuntary admission of the 15th of July, 2024, was not made in accordance with s. 9(5) of the 2001 Act was also granted. The originating Notice of Motion was made returnable to the 21st of January, 2025. A Statement of Opposition was filed on the 3rd of April, 2025. The Statement of Opposition was grounded on an Affidavit of the Chair of the MHT.

PRELIMINARY OBJECTION AND ISSUE FOR DETERMINATION

35. A preliminary objection was taken to legal grounds pursued on the Statement of Grounds which had not been raised at the first opportunity, namely, the claim that the application for involuntary admission of the 15th of July, 2024, was not made in accordance with s. 9(5) of the 2001 Act. At the opening of the hearing before me, it was confirmed that this ground of challenge was not being pursued.

36. It was also confirmed during the hearing that while leave to challenge the Decision had been given because of a failure to engage with the evidence given by the Applicant, this ground of challenge was not being pressed in the absence of any evidence as to what the Applicant said at the hearing beyond what had been recorded by the MHT. It bears note in this regard that despite an affidavit from both the Applicant and her solicitor, no details are provided of relevant evidence given by the Applicant which it is contended the MHT ought to have considered in its decision. The absence of relevant evidence not addressed by the terms of the

Decision distinguishes this case from F.C. v. Mental Health Tribunal [2022] IECA

290. In that case, there was evidence from the individual whose liberty was at stake on the key issue which had to be decided, namely, his insight and willingness to

take medication but this evidence was not considered in the MHT decision in that case.

37. It was further clarified that although a case was made before the MHT in reliance on A.A. v. Clinical Director of the Ashlin Centre, the Applicant was not contending that the decision of the MHT was flawed for failure to adequately address this submission.

38. The core issue for me on the case as presented at the hearing of these proceedings by way of judicial review is ultimately a narrow but important one, namely, whether there was a failure on the part of the MHT to adequately reason its own decision that the requirements of s.3(1) of the 2001 Act were met in a manner which shows that it properly directed itself as to the applicable test in affirming the Admission Order detaining the Applicant.

LEGAL FRAMEWORK

39. Section 3 of the 2001 Act provides as follows:

“(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.”

40. In subsection (1) “mental illness” is defined as meaning a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment 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” is defined as meaning 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; “significant intellectual disability” is defined as meaning a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person.

41. Section 4 provides for a “best interests of the patient” test as a primary consideration as well as requiring due regard for the right of the person to dignity, bodily integrity, privacy and autonomy as follows:

“(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.”

42. Section 14 provides for admission orders in the following terms:

“(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 order.

(2) A consultant psychiatrist, a medical practitioner or a registered nurse on the staff of the approved centre shall be entitled to take charge of the person concerned and detain him or her for a period not exceeding 24 hours (or such shorter period as may be prescribed after consultation with the Commission)

for the purpose of carrying out an 12 examination under subsection (1) or, if an admission order is made or refused in relation to the person during that period, until it is granted or refused.”

43. Section 18 provides for a review by the MHT. The MHT is required under s. 18(1) to be review the detention of the person concerned and must be satisfied in affirming an order that the patient is (present tense) suffering from a mental disorder and that the requirements of ss. 9, 10, 12, 14, 15 and 16 (where applicable) had been complied with in the making of the Admission Order or, if there had been a failure, that it was not such as to affect the substance of the Order or cause an injustice.

44. Importantly, s. 18(5) of the 2001 Act provides for an obligation on the MHT to give reasons for its decision reviewing an admission or renewal order and that notice of the

decision and the reasons for it shall be given to the Commission, the consultant psychiatrist responsible for the care and treatment of the patient, the patient and his or

her legal representative and any other person to whom, in the opinion of the MHT, such notice should be given.

45. Section 49(6)(j) of the 2001 Act requires the MHT to ensure that “a sufficient record of the proceedings of the respondent” is made.

APPLICABLE PRINCIPLES

46. There was a large measure of agreement between the parties as to the applicable principles. I have been referred to a series of cases including: M.R. v. Sligo Mental Health Services [2007] IEHC 73, [2007] 3 I.R. 211; F.C. v. M.H.T. [2022] IECA 290;

A.A. v Clinical Director of the Ashlin Centre [2024] IEHC 408; A.R. v. Department of Psychiatry Connolly Hospital [2024] IEHC 440; I.F. v. M.H.T. [2019] IESC 44, [2020] 1 I.R. 604; B.G. v. Clinical Director, Midland Regional Hospital [2024] IEHC 643; M.D. v. Clinical Director of St. Brendan’s Hospital [2007] IESC 37, [2008] 1 I.R. 632 and A.C. v. Director of Nursing at St. Finbarr's Hospital [2019] IESC 73. I was also referred to H.K. v. Llanarth Court Hospital [2014] UKUT 140 cited with approval in F.C. v M.H.T. [2022] IECA 290.

47. Sections 3(1)(a) and 3(1)(b) are not alternative to each other and there can be an overlap between the two. Insofar as s.3(1)(a) is concerned, the threshold for detention in an approved centre is set high. There must be a serious likelihood of the person concerned causing immediate and serious harm to herself or others. Harm encompasses both physical and mental injury but to be serious it must be actual harm of some significance (M.R. v. Sligo Mental Health Services). The MHT has a dual role. It must be satisfied as to the lawfulness of the Admission Order at the time it was made and it must also be satisfied that it the conditions for involuntary admission continue to be met at the time of the hearing before it (I.F. v. M.H.T. and A.A. v Clinical Director of the Ashlin Centre). It is established that the MHT must reason its decision to impose a loss of liberty on a mentally ill person having regard to the requirement for reasons at common law and/or as a matter of natural or constitutional justice and/or pursuant to s.18(5) of the 2001 Act.

48. As found by the Court of Appeal in F.C. v. M.H.T., the adequacy of the reasons given on the facts of a given case is both context-specific and case-specific.

Context specific in the sense of the legal context in which the decision is being made, with a case involving the involuntary detention of a vulnerable person giving rise to a heightened obligation to be clear and unambiguous. Case-specific in that that the adequacy of the reasons offered will vary from case to case by reference to the specific language used in communicating the decision in the context of the hearing which has gone before, including the evidence adduced and the submissions made.

49. The Court of Appeal in F.C. v. M.H.T. acknowledged that there is a balance to be struck and there must be an element of common sense and practicality in approaching the question of adequacy of reasons. For the reasons to be adequate in the context of a deprivation of liberty of a vulnerable person, however, the MHT should set out its reasons by reference to the relevant criteria for detention. The reasons given should address how the MHT dealt with any disputes as to either the law or the evidence. The reasons should be clear and unambiguous. What is required is to explain: (i) what facts the MHT found on the evidence; and (ii) what conclusions the MHT reached on those facts. Language which does not explicitly address the statutory criteria, but when read in context implies a consideration of the statutory criteria, may be treated as sufficient. Equally, it may be possible to infer from the language used that the statutory criteria have been considered but there are limits to the use of inference and/or implication (A.A. v Clinical Director of the Ashlin Centre). The reasoning must be sufficient to demonstrate that the Tribunal directed its mind to the statutory test and identified grounds for their opinion that all parts of the test were met, however tersely or summarily.

DISCUSSION AND DECISION

50. Section 3(1) provides for involuntary admission in two distinct situations which might broadly be referred to as the risk ground (s. 3(1)(a)) and the treatment ground (s. 3(1)(b)(i) & (ii)). There is an overlap between these grounds. It is quite possible for the criteria for involuntary admission under both grounds to be met. On prescribed forms under the 2001 Act, including the relevant forms in this case, namely, Forms 5, 6, and 8 as well as the Section 17 Report and the “Record of MHT Proceedings,” pre-populated choices are offered in a manner which requires consideration of whether the criteria for mental disorder are present and if present, whether they relate to s. 3(1)(a) or (b) of the 2001 Act or both. The structure of the forms and standardised documents is evidently designed to ensure that at each stage practitioners and decision makers are properly directed in law to the question which should be addressed on the evidence in deciding to detain a vulnerable person on an involuntary basis.

51. In this case, the Admission Order, the s. 17 Report of the Independent Consultant Psychiatrist and the Order of the MHT affirming the Admission Order clearly identify s. 3(1)(a) as the basis for admission. Except for the GP who made application for admission, none elect for s. 3(1)(b) of the 2001 Act or both s. 3(1)(a)

and (b) as the basis for involuntary admission.

52. No issue is now taken with the MHT’s consideration under s. 18(1)(a)(i) of the 2001 Act as to whether the requirements of ss. 9, 10, 12, 14 and 16 have been complied with and it is not disputed in these proceedings that the requirements of s. 3(1)(a)

of the 2001 Act were met when the Admission Order was made. The difficulty identified in these proceedings is with the “present-day analysis” carried out by the MHT as to whether the Applicant continued to suffer from a mental disorder within the meaning of s. 3 as at the date of the hearing. This present-day analysis required a substantive evaluation, informed by the psychiatric evidence before the MHT, as to whether the criteria for involuntary admission under s. 3 of the 2001 Act continued to be met at the time of the hearing before it.

53. It is crystal clear that the legal basis for detention on the 30th of July, 2024, was identified by the MHT as being s.3(1)(a) of the 2001 Act, as it formally records in two distinct records, namely, the Form 8 and the “Record of Mental Health Tribunal.” The concern on behalf of the Applicant as I understand it, however, is that the reasons given for the Decision are not adequate to show that the MHT properly directed itself in law as to the applicable test. Instead, the reasoning given suggests a conflation of the tests under s. 3(1)(a) (the risk grounds) and (b)(i) & (ii)

(the treatment grounds) of the 2001 Act, without making it clear that the criteria for detention under s. 3(1)(a) are met and why, this being the basis upon which detention was affirmed.

54. In affirming an Admission Order under s. 3(1)(a) of the 2001 Act, the following essential elements are prescribed by statute and must be met:

I. There should be a finding that the detained person is suffering from a mental illness, severe dementia or significant intellectual disability;

and

II. Consequent upon this diagnosis, there should be a further finding that there is a serious likelihood of the person concerned causing immediate and serious harm to herself or to other persons.

55. This is in contrast with s. 3(1)(b) which also requires the MHT to be satisfied that the detained person is suffering from a mental illness, severe dementia or significant intellectual disability as at I above, but in addition requires a finding that (i)

consequent upon the severity of the mental disorder, 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) a finding that 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.

56. Thus, s. 3(1)(b) imposes a cumulative test requiring the MHT to be satisfied that a failure to admit the patient is either likely to lead to a serious deterioration in her condition or would prevent the administration of appropriate treatment that could be given only by such admission and that the admission for 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 (underlining added for emphasis).

57. There are a number of apparent distinct but essential elements to both the s. 3(1)(a) and s.3(1)(b)(i) and (ii) tests. It is crucial that the MHT properly directs itself as to the legal test it is applying when deciding whether the conditions for involuntary detention are met on the evidence and explaining its decision. A properly reasoned decision should explain why the MHT is satisfied to make these findings. Something more than mere recitation of the statutory language is required. It is necessary to tie the findings made to the evidence which the MHT identifies as supporting that finding thereby demonstrating the application of the correct test to the evidence in making the decision.

58. While there is a finding in this case that the Applicant is suffering from a mental disorder within the meaning of s.3(1)(a), the reference to a requirement for treatment at the Approved Centre in conjunction with this finding and as part of the same sentence, is unhelpful and confusing because it imports the criteria for admission on the treatment ground into a finding on the risk ground.

59. This confusion is compounded when viewed together with the reasons then given when the MHT states that the risks to the Applicant if discharged as outlined by the Independent Consultant Psychiatrist and the Treating Consultant Psychiatrist are “serious” and her best interests are served by inpatient care and treatment in this approved centre and such care and treatment is likely to benefit or alleviate her condition to a material extent. The latter formula of words is a clear reference to the statutory language of s.3(1)(b) and not s. 3(1)(a) of the 2001 Act. The merger of a finding of serious harm with treatment criteria without first breaking down the distinct elements of the s. 3(1)(a) test to make clear findings, is problematic. A lack of certainty regarding the precise legal basis for detention is caused by the seeming conflation of two distinct tests in a manner suggestive of muddled thinking.

60. A conflation of the two tests might not undermine the lawfulness of ongoing detention on foot of an Admission Order if it were still apparent that a correct basis for detention has been identified by the MHT and the test properly applied. Afterall, the need for treatment and the likelihood of benefit are factors which might be considered as part of a best interest’s assessment under s. 4 of the 2001 Act and are therefore not wholly irrelevant to a consideration of detention under s. 3(1)(a) to the extent that s. 4 considerations overlay admission under both limbs of s. 3(1) of the 2001 Act.

61. Relevant considerations under the distinct limbs of s. 3(1) are not hermetically sealed.

Given also that I am concerned with substance and not form, the fact that the reasoning of the MHT extends beyond the strict criteria of s. 3(1)(a) to embrace the criteria of s.

3(1)(b)(i) and (ii), would not be enough to quash the decision of the MHT if references to treatment considerations were the only concern, provided it were still clear that the MHT had separately established that the s. 3(1)(a) criteria were met on the evidence.

62. The issue in this case, however, goes beyond identification of considerations which are not a specific requirement of the s. 3(1)(a) test and raises a question of a failure to address the component parts of the s. 3(1)(a) test as the identified basis for detention in the Decision. It is not clear from the Decision that the MHT established as present all essential elements for making a finding that the patient was suffering from a mental disorder within the meaning of s.3(1)(a) of the 2001 Act.

63. It is not enough to identify a risk of serious harm to justify involuntary detention under s. 3(1)(a), a high risk of serious and immediate harm is required. Nothing in the reasoning advanced to support the decision addresses how the requirement for immediacy of risk of serious harm is met on the facts in this case. The Decision is simply silent in this regard.

64. Whilst some urgency may be inferred from the fact that the High Court authorised treatment in this case, in making treatment orders in exercise of its inherent jurisdiction the High Court applies a different test to that in s. 3(1)(a) of the 2001 Act (orders made under the Court’s inherent jurisdiction, when that jurisdiction is engaged, are made when considered necessary and proportionate on a balancing of competing constitutionally-protected rights). Therefore, it does not necessarily follow that the fact that High Court orders were made means that the risk of harm was sufficiently immediate and sufficiently serious to satisfy the requirements of s.

3(1)(a) of the 2001 Act. Nor should the Applicant be expected to infer reasoning to justify the decision of the MHT when the reasoning is not clearly discernible from the terms of the Decision. The MHT should show that they have “stepped through” each aspect of the statutory definition and where affirming based on s.3(1)(a), the MHT should show they have addressed themselves to the harm criteria and the constituent elements of the statutory test.

65. It should be recalled that the circumstances of this case did not all point towards a serious and immediate risk of harm. Afterall, the Applicant had been admitted to the Approved Centre for some nine days before feeding commenced pursuant to Court order. During the said nine days she was assured on several occasions, as recorded in the medical records, that hospital transfer was not urgent. By the date of the hearing, she had been established on tube feeding for some four days. While there was evidential material potentially capable of providing a basis for conclusions of a serious likelihood of serious and immediate risk depending on how the MHT assessed this evidence, this material was not so self-evident as to displace a requirement to explain what had been identified by the MHT as supporting their finding of a serious likelihood of immediate and serious harm. In the circumstances, it was necessary for the MHT to make a finding on the evidence as to the risk of serious and immediate harm that it was satisfied had been established as remaining an active risk on the date of the hearing.

66. The requirement to provide an explicit and unambiguous explanation for the deprivation of the Applicant’s liberty under s. 3(1)(a) thereby demonstrating that all the evidence was properly considered and ruled upon, and that the MHT was clearly satisfied from its conclusions on that evidence that the relevant legal criteria were fulfilled was not met in this case. The Decision fails to show that the MHT had considered the immediacy of a serious likelihood of serious harm or had identified the grounds upon which it was satisfied that this criterion was met. The limits on the use of inference or implication have been exceeded on the facts of this case. The Applicant could not be satisfied based on the terms of the

Decision that the MHT directed its attention to the correct test and applied it in affirming her continuing involuntary admission on s. 3(1)(a) grounds. There has been a simple failure to address all elements of s. 3(1)(a). This is a substantial failure in this legal context in view of the language and immediate circumstances of the decision which include an apparent conflation of the two separate tests under s. 3.

67. In my view, the reasoning recorded by the MHT does not reach the minimal threshold identified in A.A. v. Clinical Director of the Ashlin Centre of indicating that the decision-maker has properly considered and applied the harm criteria prescribed by statute. This failure invalidates the decision of the MHT to affirm the Admission Order.

68. While I have concluded that the reasons offered were insufficient, it seems to me that involuntary detention under s. 3(1)(a) could have been justified on the evidence had more been offered in the reasoning given. In this regard, although not necessary for me to decide the issue before me, I am not persuaded by the submission made to the effect that the s. 3(1)(a) criterion of serious and immediate harm could never be met where, for example, the consequence of a mental illness causes a patient to refuse to eat despite serious associated risks of injury to the Patient. Indeed, it is not disputed in these proceedings that the requirements of s.

3(1)(a) were met on the 17th of July, 2024, when the Admission Order was made using the Form 6 and the decision of the MHT in this regard is not challenged. Depending on how it was weighed, I am satisfied that the evidence could support a finding that serious harm had occurred and was occurring (therefore immediate) as at the date the Admission Order was made. A similar conclusion could have been open to the MHT as at the date of the hearing before it.

69. If, on the facts of a given case, it is established on the evidence before the MHT, for example, that as a consequence of a patient’s actions by reason of seriously impaired judgment occasioned by mental illness (as defined under s. 3), there is as serious likelihood of an immediate and serious risk of harm such as risk of organ failure causing death or an avoidable need for a transplant, then it seems to me that the criteria for invoking s. 3(1)(a) of the 2001 Act could be met. I see no reason, in principle, why s.

3(1)(a) could not extend to providing for a lawful deprivation of liberty in such circumstances, independently of any basis potentially also available on treatment grounds. I did not find the argument on behalf of the Applicant to the contrary to be compelling. It remains necessary, however, even where the evidence available is patently sufficient to support a decision under s. 3(1)(a), to explain the basis in evidence upon which it is concluded that the criteria have been met. It is in this regard that I find the MHT to fall short in this case.

CONCLUSION

70. For the reasons set out, I am satisfied that the Applicant has demonstrated that the

decision of the MHT was inadequate as to its reasoning because it failed to explain the basis upon which it concluded that the criteria of s.3(1)(a) of the 2001 Act was met and therefore failed to demonstrate an application of the correct legal test to the evidence in deciding to affirm the Admission Order on that basis. I will hear the parties as to the form of a final order and any consequential matters. As this judgment is being delivered electronically, this case will be re-listed before me upon the expiry of 14 days from the date of delivery.