Appeal to Circuit Court dismissed when patient discharged; only Tribunal review applies to historical detention validity.

THE COURT OF APPEAL

UNAPPROVED

Record Number: 2023/176

Neutral Citation No [2026] IECA 12

Power J. Binchy J. O’Moore J.

IN THE MATTER OF THE MENTAL HEALTH ACT 2001 AND IN THE

MATTER OF A CONSULTATIVE CASE STATED

BETWEEN/

H.

APPELLANT

-AND-

THE MENTAL HEALTH TRIBUNAL

RESPONDENT

-AND-

THE ATTORNEY GENERAL, THE MINISTER FOR HEALTH AND THE

MENTAL HEALTH COMMISSION

NOTICE PARTIES

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 12th day of February 2026

1. This judgment concerns the complex issue of whether or not an appeal to the Circuit Court is available to a patient in circumstances where the relevant admission order has been revoked, and the patient discharged. This judgment also concerns the scope of such an appeal, if indeed such a right of appeal exists.

2. This issue has already been the subject of judgments in the High Court 1, this Court 2 and the Supreme Court 3.

3. This judgment is arranged under the following headings:

(1) The facts of the case;

(2) The consultative case stated of the Circuit Court dated 27 June 2023;

(3) The procedural history of the case stated;

(4) The legislation;

(5) Principles of construction;

(6) The proper construction of the legislation;

(7) The European Convention on Human Rights;

(8) Han v President of the Circuit Court [2011] 1 I.R. 504, I.F. v Mental Health Tribunal (Court of Appeal) and I.F. v Mental Health Tribunal (Supreme Court).

Charleton J. in Hand v. President of the Circuit Court [2011] 1 IR 504. Hogan J. in IA v. Mental Health Tribunal [2018] 2 ILRM 225. Dunne J. in IF v Mental Health Tribunal [2020] 1 IR 604.

The facts

4. On the 4 March 2023, H was admitted to the Acute Mental Health Unit at Cork University Hospital. H was committed, on an involuntary basis, to the hospital on the basis of a diagnosis by a consultant psychiatrist to the effect that the severity of H’s condition was such that (in the absence of his admission to hospital) either his condition would seriously deteriorate, or the administration of appropriate medication or treatment would not be possible. The report produced for the purpose of s. 17(1) (c) of The Mental Health Act 2001 (to which I will return) states as follows:

‘This patient had been admitted to Acute Mental Health Unit (AMHU), Cork University Hospital (CUH) under The Mental Health Act (MHA) on 4/3/23 and this order was revoked by his RCP [Responsible Consultant Psychiatrist] on 6/3/23 and he remained in hospital as a voluntary patient until planned discharge on 8/3/23. The patient requested that the mental health review tribunal would proceed.’

5. As this summary indicates, notwithstanding the fact that H was free to leave the hospital as of the 6 March 2023, he elected not to do so. This was despite the fact that the order compelling his hospitalisation was revoked on the 6th of March. H opted to pursue a review by The Mental Health Tribunal of the original order. This is permitted under s. 28 of the 2001 Act. Again, this is legislation to which I will return.

6. The Mental Health Tribunal carried out a review pursuant to s.18 of the 2001 Act. The review reads as follows:

‘This is a review under S.28 of the Act of 2001 as amended, and we are tasked with looking at the decision to admit on the 4th day of March 2023 by Dr. K., with the provisions of S17 & 18 being observed where they apply with any modifications as necessary.

The Provisions of S17 & 18 include reference to S 9, 10, 12, 14, 15 and 16 where applicable, we have carefully considered these provisions, and have spoken with the Consultant Psychiatrist who made the admission order and are satisfied that all reasonable and appropriate steps were taken in the making of this order. There is no error on the forms before this tribunal and we find that the decision to admit was reasonable in the circumstances, until it was revoked.’

7. The decision of the Tribunal is dated the 30 March 2023.

8. In the Notice of Appeal, dated the 5 April 2023, H sought the intervention of the Circuit Court. The Notice of Appeal stated that H would seek the following reliefs:

(i) ‘A Declaration that the Appellant is entitled pursuant to Section 19 of the Mental Health Act 2001 to appeal to this Honourable Court against the decision of the Mental Health Tribunal on foot of its review of the Appellant’s detention in accordance with the provisions of Section 28(5) and Section 18 the Mental Health Act 2001.

(ii) A Declaration that the Appellant’s involuntary admission into the Acute Mental Health Unit, Cork University Hospital on the 4th day of March was unlawful.

(iii) Such further or other Declaration and/or Order as this Honourable Court shall deem fit.’

9. For the purpose of the current proceedings, it is important to note that the substantive relief sought on appeal to the Circuit Court was the declaration at point (ii) to the effect that the original involuntary admission on the 4 March 2023 was unlawful. Again, I will return to this in the context of the analysis of the legislation.

10. On the 24 April 2023, submissions were signed by counsel on behalf of H addressing the question of whether or not the Circuit Court had jurisdiction to hear H’s appeal proposing a question for referral to this Court by way of the case stated.

11. The question proposed by H’s counsel was the following:

‘Does s.20(5) of the Mental Health Act 2001 entitle a patient discharged from an approved centre under that section to appeal to the circuit court, pursuant to s.19(1) of the Mental Health Act 2001, against a decision of the Mental Health Tribunal reached on foot of an historic review of that patient's detention?’

12. Ultimately, the question posed by the Circuit Court Judge to this Court was somewhat more involved.

Consultative case stated of the Circuit Court dated 27 June 2023

13. His Honour Judge O’Callaghan, having heard arguments on behalf of H and on behalf of the Mental Health Tribunal, noted that both parties consented to the referral of a question to this Court by way of a consultative case stated. The question eventually posed is in the following form:

‘Is the patient entitled by virtue of the provisions of s. 28(5), to avail of an appeal of the Decision to the Circuit Court pursuant to section 19 where –

(i) Section 19(1)) of the 2001 Act is concerned with determining whether a patient is suffering from a mental disorder or not, and

(ii) section 28 (5) of the 2001 Act provides that where a patient requests a review under Section 18, the provisions of Section 17 to 19 shall apply in relation to the review with any necessary modifications and, if so, what is the nature and scope of such an appeal?’ The procedural history of the case stated

14. Both in the hearing before His Honour Judge O'Callaghan, and in the early stages of the progressing of the consultative case stated before this Court, H has been represented by solicitors and counsel. However, by Notice of Motion, dated the 5 September 2023, the solicitors for H sought an order permitting them to come off record; that order was made by this Court (Noonan J.) on the 6 October 2023.

15. The case stated was listed for hearing on the 5th of December 2023. At that stage, H was still representing himself and the tribunal was represented by solicitors and counsel. Having considered the situation, the Court made the following observation:

‘The court considers it desirable in the very exceptional circumstances of this case to recommend payment by the State of the costs of the appellant’s solicitor of the within consultative case stated to include senior and junior counsel in accordance with the Legal Aid (Custody Issues) Scheme. The Mental Health Commission will seek to identify legal practitioners from the MHC panel willing to Act on behalf of the appellant in the case stated from Judge O'Callaghan.’

16. This Court’s recommendation found favour with the relevant State entities, and when the appeal hearing ultimately proceeded, it did so with H being fully represented by a solicitor, instructing senior and junior counsel. Fresh sets of legal submissions were delivered on behalf of H and on behalf of the Mental Health Tribunal. Given the significance of the issue, it was clearly preferable that matters proceed in that way.

The Legislation

17. The Mental Health Act 2001 was a groundbreaking piece of legislation designed to overhaul the involuntary admission of persons suffering from mental disorders and the review of such involuntary admission, provide for the establishment of a Mental Health Commission and for the appointment of Mental Health Commission Tribunals as well as an Inspector of Mental Health Services. Previously, such matters had been governed by legislation from the mid-1940s (The Mental Health Treatment Act 1945). The 2001 Act was designed to provide a comprehensive legislative basis for the activities covered by it. It is of some significance that section 4 of the 2001 Act reads 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’.

18. Part 2 of the 2001 Act deals with the involuntary admission of persons to approved centres. It is unnecessary to set out verbatim many of the less relevant sections. However, as it features in terms of the scope of the review carried out by the Mental Health Tribunal in H’s case (as in every other case), it is important to note the purpose of certain relevant sections:

i. Section 8 sets out the criteria for involuntary admission to approved centres; ii. Section 9 specifies the persons who may apply for involuntary admission; iii. Section 10 provides how a registered medical practitioner is to make recommendations for the involuntary admission of an individual; iv. Section 12 sets out certain powers of An Garda Síochána to take persons believed to be suffering from mental disorder into custody; v. Section 14 stipulates the steps to be taken by a consultant psychiatrist on the staff of the approved centre in considering, and if necessary, making an admission order; vi. Section 15 deals with the duration and renewal of admission orders. In that regard, it is notable that an admission order is to remain in force for a period of 21 days. The order in respect of H was revoked well within that time.; vii. and then section 16 deals with the provision of information for persons admitted to approved centres.

19. It is now necessary to set out, in full, the provisions of sections 17 to 19 (inclusive) of the 2001 Act (as amended):

‘17. - (1) Following the receipt by the Commission of a copy of an admission order or a renewal order, F21[or an application referred to in section 15(3)(b),] the Commission shall, as soon as possible—

(a) refer the matter to a tribunal,

(b) assign a legal representative to represent the patient concerned unless he or she proposes to engage one,

(c) direct in writing (referred to in this section as “a direction”) a member of the panel of consultant psychiatrists established under section 33(3)(b) to—

(i) examine the patient concerned,

(ii) interview the consultant psychiatrist responsible for the care and treatment of the patient, and

(iii) review the records relating to the patient,

in order to determine in the interest of the patient whether the patient is suffering from a mental disorder and to report in writing within 14 days on the results of the examination, interview and review to the tribunal to which the matter has been referred and to provide a copy of the report to the legal representative of the patient.

(2) Where the Commission gives a direction under this section, the consultant psychiatrist concerned shall, on presentation by him or her of the direction at the approved centre concerned, be admitted to the centre and allowed to—

(a) examine the patient and the records relating to the patient, and

(b) interview the consultant psychiatrist responsible for the care and treatment of the patient.

(3) If the consultant psychiatrist to whom a direction has been given under this section is unable to examine the patient concerned, he or she shall so notify the Commission in writing and the Commission shall give a direction under subsection

(1) to another member of the panel of consultant psychiatrists.

(4) A person who obstructs or interferes or fails to co-operate with a consultant psychiatrist in the performance of his or her functions under this section shall be guilty of an offence. 18.—(1) Where an admission order or a renewal order has been referred to a tribunal under section 17, the tribunal shall review the detention of the patient concerned and shall either—

(a) if satisfied that the patient is suffering from a mental disorder, and

(i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or

(ii) if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice, affirm the order, or

(b) if not so satisfied, revoke the order and direct that the patient be discharged from the approved centre concerned.

F22[(2) Subject to subsection (4), a decision under subsection (1) shall be made as soon as may be, but—

(a) in the case of an admission order or a renewal order, not later than 21 days after the making of such order, or

(b) in the case of an application referred to in section 15(3)(b), not later than 21 days after the date on which the Commission received the application.]

(3) Before making a decision under subsection (1), a tribunal shall have regard to the relevant report under section 17(1)(c).

(4) The period referred to in subsection (2) may be extended by order by the tribunal concerned (either of its own motion or at the request of the patient concerned) for a further period of 14 days and thereafter may be further extended by it by order for a period of 14 days on the application of the patient if the tribunal is satisfied that it is in the interest of the patient and the relevant admission order, or as the case may be, renewal order shall continue in force until the date of the expiration of the order made under this subsection.

(5) Notice in writing of a decision under subsection (1) and the reasons therefor shall be given to—

(a) the Commission,

(b) the consultant psychiatrist responsible for the care and treatment of the patient concerned,

(c) the patient and his or her legal representative, and

(d) any other person to whom, in the opinion of the tribunal, such notice should be given.

(6) The notice referred to in subsection (5) shall be given as soon as may be after the decision and within the period specified in subsection (2) or, if it be the case that period is extended by order under subsection (4), within the period specified in that order.

(7) In this section references to an admission order shall include references to the relevant recommendation and the relevant application.

19. - (1) A patient may appeal to the Circuit Court against a decision of a tribunal to affirm an order made in respect of him or her on the grounds that he or she is not suffering from a mental disorder.

(2) An appeal under this section shall be brought by the patient by notice in writing within 14 days of the receipt by him or her or by his or her legal representative of notice under section 18 of the decision concerned.

(3) The jurisdiction conferred on the Circuit Court by this section may be exercised by the judge of the circuit in which the approved centre concerned is situated or, at the option of the patient, in which the patient is ordinarily resident.

(4) On appeal to it under subsection (1), the Circuit Court shall—

(a) unless it is shown by the patient to the satisfaction of the Court that he or she is not suffering from a mental disorder, by order affirm the order, or

(b) if it is so shown as aforesaid, by order revoke the order.

(5) An order under subsection (4) may contain such consequential or supplementary provisions as the Circuit Court considers appropriate.

(6) Notice of any proceedings under this section shall be served by the person bringing the proceedings on—

(a) the consultant psychiatrist concerned,

(b) the tribunal concerned,

(c) the clinical director of the approved centre concerned, and

(d) any other person specified by the Circuit Court.

(7) Before making an order under this section, the Circuit Court shall have regard to any submission made to it in relation to any matter by or on behalf of a party to the proceedings concerned or any other person on whom notice is served under subsection (6) or any other person having an interest in the proceedings.

(8) The Circuit Court shall exclude from the Court during the hearing of an appeal under this section all persons except officers of the Court, persons directly concerned in the hearing, bona fide representatives of the Press and such other persons (if any) as the Court may in its discretion permit to remain.

(9) No matter likely to lead members of the public to identify a patient who is or has been the subject of proceedings under this section shall be published in a written publication available to the public or be broadcast.

(10) Without prejudice to subsection (8), the Circuit Court may, in any case if satisfied that it is appropriate to do so in the interests of the patient, by order dispense with the prohibitions of that subsection in relation to him or her to such extent as may be specified in the order.

(11) If any matter is published or broadcast in contravention of subsection (8), each of the following persons, namely—

(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(b) in the case of any other publication, the person who publishes it, and

(c) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, shall be guilty of an offence.

(12) Nothing in this section shall affect the law as to contempt of court.

(13) In this section—

“broadcast” means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

“written publication” includes a film, a sound track and any other record in permanent form (including a record that is not in a legible form but which is capable of being reproduced in a legible form) but does not include an indictment or other document prepared for use in particular legal proceedings.

(14) In any proceedings under this section a document purporting to be a report prepared pursuant to section 17 concerning a patient shall be evidence of the matters stated in the document without further proof and shall, unless the contrary is proved, be deemed to be such a document.

(15) A notice required by subsection (6) to be served on a person, may be so served—

(a) by delivering it to him or her or to his or her solicitor,

(b) by addressing it to him or her and leaving it at his or her usual or last known residence or place of business or by addressing it to his or her solicitor and leaving it at the solicitor's office,

(c) by sending it by registered post to him or her at his or her usual or last known residence or place of business or to his or her solicitor at the solicitor's office, or

(d) in the case of a body corporate, by delivering it, or sending it by registered post, to the secretary or other officer of the body at its registered or principal office.

(16) No appeal shall lie against an order of the Circuit Court under this section other than an appeal on a point of law to the High Court.’

20. Finally, it is necessary to set out in full section 28 of the 2001 Act (as amended). As will be seen, the relevant portions of that section are s. 28 (1) and s. 28(5). However, to give the subsections context, I am setting out the entire section.

‘28. - (1) Where the consultant psychiatrist responsible for the care and treatment of a patient becomes of opinion that the patient is no longer suffering from a mental disorder, he or she shall by order in a form specified by the Commission revoke the relevant admission order or renewal order, as the case may be, and discharge the patient.

(2) In deciding whether and when to discharge a patient under this section, the consultant psychiatrist responsible for his or her care and treatment shall have regard to the need to ensure:

(a) that the patient is not inappropriately discharged, and

(b) that the patient is detained pursuant to an admission order or a renewal order only for so long as is reasonably necessary for his or her proper care and treatment.

(3) Where a consultant psychiatrist discharges a patient under this section, he or she shall give to the patient concerned and his or her legal representative a notice in a form specified by the Commission to the effect that he or she—

(a) is being discharged pursuant to this section,

(b) is entitled to have his or her detention reviewed by a tribunal in accordance with the provisions of section 18 or, where such review has commenced, completed in accordance with that section if he or she so indicates by notice in writing addressed to the Commission within 14 days of the date of his or her discharge.

(4) Where a consultant psychiatrist discharges a patient under this section, he or she shall cause copies of the order made under subsection (1) and the notice referred to in subsection (3) to be given to the Commission and, where appropriate, F35[the Health Service Executive] and housing authority.

(5) Where a patient is discharged under this section—

(a) if a review under section 18 has then commenced, it shall be discontinued unless the patient requests by notice in writing addressed to the Commission within

14 days of his or her discharge that it be completed, or

(b) if such a review has not then commenced, it shall not be held unless the patient indicates by notice in writing addressed to the Commission within 14 days of his or her discharge that he or she wishes such a review to be held, and, if he or she requests that a review under section 18 be completed or held, as the case may be, the provisions of sections 17 to 19 shall apply in relation to the review with any necessary modifications.

Principles of construction

21. The approach to be taken by any court in construing legislation is comprehensively set out by Murray J. (with whom O’Donnell C.J., O’Malley, Woulfe and Hogan JJ. agreed) in Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43. At the

conclusion of the relevant section of his judgment, Murray J. (in addressing the effect of section 5 of the Interpretation Act 2005) states (at paragraph 128);

“While the meaning of the language used in a provision remains the focal point of any exercise in statutory interpretation, textual or contextual ambiguity or obscurity as well as the production of absurdity or undermining of an identifiable legislative intent will enable the taking into account of broader considerations to ascertain the legislator’s intention. To that extent, s. 5 is of assistance in providing legislative grounding for and confirmation of the approach that is today taken by the courts (and had been taken by some judges for a very long time). As the Law Reform Commission Consultation Paper makes clear, this was required in a context in which some of the judicial decisions suggested unease in looking beyond the language of the provision. Section 5 puts it beyond doubt that the approach suggested in those decisions does not represent the correct interpretative method. As matters have transpired, the courts have independently of s. 5 arrived at the same point.”

22. Earlier in his judgment, Murray J. had commented on the peculiarity that ‘both submissions of counsel and decisions of some courts show on occasion a dogged adherence to the refrain that a literal interpretation of a statutory provision is departed from so as to consider broader questions of statutory purpose and context only where the construction yielded by that literal analysis is “ambiguous or absurd”… What, in fact, the modern authorities now make clear is that with or without the intervention of [s. 5], in no case can the process of ascertaining the “legislative intent” or the “will of the Oireachtas” be reduced to the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of a statute as a whole or the context in which, and purpose for which, it was enacted.’

23. From these portions of the judgment in Heather Hill, I take it that a slavish interpretation of the wording of one section of a piece of legislation (taken out of the context of the text or purpose of a statute) is not to be encouraged even where such a literal and limited interpretation does not give rise to results which are either absurd or ambiguous. Having said that, an absurd result is something the courts will avoid. That much is clear from the words of O’Donnell C.J. in People (DPP) v AC [2021] IESC 74; ‘if, when viewed in context, having regard to the subject matter and the objective of the legislation, a single, plain meaning is apparent, then effect must be given to it unless it would be so plainly absurd that it could not have been intended…’ This part of the judgment of O’Donnell C.J. is quoted, with added emphasis, by Murray J. at paragraph 111 of Heather Hill.

The proper construction of the legislation

24. Put briefly, counsel for the Mental Health Tribunal argue that any appeal from the Tribunal to the Circuit Court can only concern itself with whether or not (at the time that appeal to the Circuit Court is heard) the appellant is suffering from a mental disorder. The Tribunal rely heavily on the wording of s.19(1) of the Act. In response, counsel for H argue that section 28(5) reserves the right of appeal to the Circuit Court even in circumstances where an individual is no longer suffering from a mental disorder. They argue, therefore, that the jurisdiction of the Circuit Court is to consider whether or not an appellant is suffering from a mental disorder at the time of the Circuit Court hearing or at the time of the hearing before the Tribunal.

25. Counsel for H also rely upon a very wide range of judgments of the European Court of Human Rights. These will be dealt with separately from the question of the construction of the legislation, as it is appropriate to do so in this case.

26. In considering the legislation, it is important to understand the position which applies even before the provisions of section 28 come into play. Firstly, section 17 provides for the prompt and automatic reference of any admission order to the Mental Health Tribunal. Section 17 also provides for a number of practical steps to be taken for the purpose of allowing the Tribunal to carry out its function in conducting a review.

27. Under section 18, the review of the Tribunal will have one of two results. Either the admission order will be confirmed, or it will be revoked. These are the only two outcomes provided for by the legislation. The admission order must be affirmed if two conditions are met. The first is that there has been material compliance with sections 9, 10, 12, 14, 15 and

16 of the Act. Compliance with these provisions ensures that the person who has been involuntarily admitted has nonetheless received the benefit of all of the substantive and procedural safeguards contained in those sections.

28. The second matter in respect of which the Tribunal must be satisfied is that “the patient is suffering from a mental disorder…”

29. If the Tribunal is satisfied in respect of both of these matters, it has no option but to affirm the order. If it is not so satisfied, it has no option but to revoke the order.

30. Section 19(1) of the Act provides for an appeal to the Circuit Court. It is important to note that the appeal is only permissible “against a decision of a Tribunal to affirm an order made in respect of him or her…”. The only grounds upon which the appeal can be based are in circumstances where “…he or she is not suffering from a mental disorder.” It is of some interest that the appeal must be brought within fourteen days of the receipt by the patient (or their legal representative) of the order of the Tribunal affirming the admission order.

31. Looking at section 18, therefore, a number of things are clear.

32. Firstly, the jurisdiction of the Tribunal is extensive and the range of matters that fall within this jurisdiction is wide-ranging. Only one of those matters relates to whether or not the patient “is” suffering from a mental disorder.

33. Secondly, the jurisdiction of the Circuit Court is significantly narrower than that of the Tribunal. It is not to have regard to whether or not there was material compliance with the provisions of section 9, 10, 12, 14, 15 or 16 of the 2001 Act. It is concerned only with whether or not the patient “is” not suffering from a mental disorder.

34. Thirdly, the appellate jurisdiction of the Circuit Court is further reduced in that it can only be invoked in respect of a decision by the Tribunal to affirm the admission order. The Circuit Court has no jurisdiction to entertain an appeal against the revocation of an admission order pursuant to section 18 (1)(b) of the Act.

35. Fourthly, consistent with the limited jurisdiction of the Circuit Court and the limited range of orders in respect of which that jurisdiction can be invoked, the Circuit Court does not engage (and does not have the power to engage) in any historical review of the circumstances of the making of the original admission order.

36. It is against that background that we come to section 28. Section 28(1) provides for the revocation of the admission order by the relevant consultant psychiatrist. The order is revoked pursuant to that subsection only where the psychiatrist forms the opinion ‘that the patient is no longer suffering from a mental disorder…’. This is the clinical backdrop against which the provisions of section 28 operate.

37. It will be seen immediately that the triggering of section 28 (1) has two aspects; one is legal, and the other is clinical. The legal aspect relates to the original admission order being at its end. There is nothing for the Tribunal (on the completion of its review) to affirm or to revoke. The clinical aspect is that, at least in the view of the consultant psychiatrist responsible for the care and treatment of the patient, the patient is no longer suffering from a mental disorder. Therefore, even if it ignores the fact that the admission order has already been set aside, the inevitable result of any review under section 18 (1) is that the order could not be affirmed because there is no detention to review.

38. I have set out the significance of the actions of the treating psychiatrist pursuant to section 28 (1) of the Act. In light of those, the provisions of section 28 (5) are peculiar, to put it mildly.

39. Firstly, it is clear that this subsection is designed to facilitate a patient in either commencing or continuing a review of an admission order made against them, notwithstanding the fact that the admission order has already been revoked. The first peculiarity is that the Tribunal does not have open to it either of the conclusions which section 18(1) specifies that the Tribunal can reach. As noted, the review can conclude by affirming the admission order or revoking the order. As the order is already revoked, the Tribunal can do neither of these things in a way that is legally meaningful. Section 28(5) therefore allows a review to be commenced and completed, although the statutory terminus of such a review can never actually be reached.

40. The second peculiarity is that, as I have already suggested, even if the Tribunal had the option of affirming or revoking an admission order, the result is effectively preordained as the treating psychiatrist will already have determined that the patient is not suffering from a mental disorder in advance of the review occurring or being completed.

41. The consequence of these two peculiarities is that the Tribunal cannot affirm the admission order in circumstances where, upon a section 18(1) referral, there is no “detention of the patient concerned” to review. It is legally impossible for the Tribunal to affirm the admission order, as that has already been discharged. There would also be no clinical basis on which to affirm the order.

42. The third peculiarity of section 28(5) relates to the appeal to the Circuit Court. As we have seen, there can be no appeal to that court other than by the patient and only against a

decision by the Tribunal to affirm the admission order. The provisions of section 28(1) mean that no such decision will be made in circumstances where the order has been revoked and the patient discharged before the review by the Tribunal occurs. If an appeal such as that sought by H in this case is permissible under the legislation, such appeal involves a radically broad extension of the appellate jurisdiction under section 19(1). In a further oddity, that expansion of the jurisdiction of the Circuit Court would occur not where the patient is detained but only in circumstances where the patient has already been discharged and the original order against him is revoked.

43. In addition, the wording of section 19(1) would have to be further altered so that the enquiry was whether the patient was suffering from a mental disorder at the time of the hearing before the Tribunal or whether the patient was suffering from a mental disorder at the time of the Circuit Court hearing; this is the formulation suggested by Hogan J. in I.F. v Mental Health Tribunal, and argued for by counsel for H at the hearing before us. It is impossible to see what useful purpose would be served by this form of appeal. It would involve a patient already found by his or her consultant psychiatrist not to be suffering from a mental disorder, and in respect of whom no admission order continues to exist, asking the Circuit Court to determine whether or not at the time of the hearing before the Tribunal that patient was suffering from a mental disorder. This would be the definition of a sterile and pointless exercise, and it is difficult to see why the Oireachtas would provide for it.

44. One can understand why it was thought desirable that the Tribunal's review would be preserved in respect of a person whose admission order had been revoked because, happily, they had ceased to suffer from a mental disorder. The patient in question would certainly have an interest in an enquiry into whether or not the relevant sections of the Act had been complied with, and whether or not the process of their involuntary admission to hospital had been done in a proper and legal manner. This legitimate interest would persist notwithstanding the revocation of the original order. In the current case, the Tribunal went through the process, and the conclusion was that everything had been done properly as far as H was concerned. That determination is not one which could ever have been reviewed by the Circuit Court on appeal. As is very plain from the provisions of section 19 and section 28, the Circuit Court has no role in hearing an appeal from the Tribunal on those issues. The only role of the Circuit Court relates to the mental health of the patient, and that already has been determined both by his clinician and by the Tribunal (in the patient's favour).

45. The wording of section 28(5), even as far as the Tribunal's review is concerned, is less than ideal. It mandates the commencement or continuation of a process without taking into account the fact that the conclusion of that process (the affirmation or revocation of the relevant order) can never be reached. Notwithstanding this, the wording of the subsection is, in some way, workable. However, as far as the appeal to the Circuit Court is concerned, the wording employed is plainly inadequate and (if H’s position is correct) leads to an absurd result. The phrase " with any necessary modifications” is (in the context) particularly unfortunate. It does not indicate that there are, in fact, modifications to be made still less does it spell out what these modifications are to be.

46. In order for the situation contended for by H to apply, section 19(1) must be reworded, not just to allow an appeal on the grounds that the patient “is or was not suffering from a mental disorder”, but also to strip away the basic provision to the effect that an appeal lies to the Circuit Court “against a decision of the Tribunal to affirm an order made in respect of him or her…”. Section 28(5) does not, either expressly or implicitly, explain what the purpose of this reconstructive surgery of section 19(1) is intended to achieve. At its height, it cannot change H's legal position in respect of admission orders made against him and it can only confirm the position that he was not suffering a mental disorder at the time of the Tribunal hearing.

47. I therefore believe that the correct interpretation of s. 18, s. 19 and s.28 taken together and in the context of the legislation is that s. 28 (5) allows for a review under s. 18 but that no appeal is available to the Circuit Court other than against an affirmation of an admission order that had been previously made and only then on the grounds that any appellant is (at the time of the appeal hearing) not suffering from a mental disorder. Any other result would, to employ the words of O’Donnell C.J. in AC, be so plainly absurd that it could not have been intended.

The European Convention on Human Rights

48. The legal team engaged on behalf of H on foot of the court’s intervention when the appeal was first listed for hearing delivered “supplemental submissions” on the 22 March 2024.

49. The same team then delivered further submissions (also described as ‘supplemental’) on the 29 May 2024.

50. The March 2024 submissions made no reference to any role that the Convention on Human Rights may play in interpreting the 2001 Act. The May 2024 supplemental submissions effectively repeated the earlier ones, but added a section titled “Right to an effective remedy”. In that section, counsel set out Article 1,5,6, and 13 of the Convention and referred to over a dozen decisions of the Court of Human Rights.

51. This section concluded:

‘It is respectfully submitted that in addition to reviewing that decision, that section 28(5) of the 2001 Act clearly contemplates that [H] would thereafter have remedy by way of appeal to the Circuit Court in respect of this matter and to interpret that section to the contrary would impinge his right to an effective remedy under Article 13 the

(sic) European Convention on Human Rights and his right to access (sic) to the Court and to protect his liberty as enshrined in Article 5 of the Convention.’

52. As counsel for the Tribunal observed in their responding submissions, ‘[H] does not identify a Convention right which entitles a person to challenge what was a historic medical determination as to whether a person had a mental disorder on a particular date in time and whether he needed to be detained as an inpatient in the hospital.’ Equally, the bold assertion contained at the conclusion of H's second set of supplemental submissions (which I have set out in full in the previous paragraph) is not supported by reference to the analysis of any article of the Convention or any case decided under the Convention.

53. Importantly, there is no suggestion that a review by the Tribunal with a further limited right of appeal to the Circuit Court where the Tribunal affirms an admission or renewal order, does not constitute an effective form of scrutiny as to whether or not the procedures set out in the 2001 Act and leading to the involuntary admission of a patient to hospital are not satisfactory for Convention purposes. It is important to note that, apart altogether from the review procedure provided for in the 2011 Act itself, the legality of a patient’s involuntary admission to hospital can be challenged (and, where appropriate, damages claimed) by means of judicial review proceedings, by way of an action for breach of constitutional rights and by claims in tort.

54. These extra arguments, based on the Convention, are therefore of no assistance in coming to a proper construction of the 2001 Act and its relevant sections.

Han and I.F.

55. In coming to the construction that I have of the interplay between section 19 and section 28 of the 2001 Act, I have clearly considered the earlier interpretation of these sections by Charlton J., Hogan J. and Dunne J.

56. The judgment of Charlton J. in Han is one which, in its result and in much of its reasoning, is aligned with the approach I have taken in this judgment. In particular, Charleton J. (at para. 17) finds that “the legislative purpose of [section 28(5)] is unclear.” I would agree with this observation, as indeed I would agree with the observation made by counsel for H at the hearing of this appeal to the effect that the language used by the legislature was “clumsy”. Charleton J. then goes on to identify the significant fact that the review by the Mental Health Tribunal was concerned not only with the current mental health of the patient but also with compliance with ‘the relevant procedures under sections 9, 10, 12, 14, 15 and 16…’. He goes on to contrast the scope of that review with the matters to be considered by the Circuit Court on appeal, which are confined only to the question of whether or not the patient (at the time the appeal to that court) is suffering from a mental disorder. Charleton J. also finds at para.18 that:

‘[Patients] do have a power to appeal the decision of that Tribunal to the Circuit Court, but only where they are still detained, solely on the grounds that they are no longer suffering from a mental disorder; but they cannot do this if they are no longer detained under The Mental Health Act 2001, because a psychiatrist treating them has decided that they are well and so must be released.’

57. While the judgment in Han is consistent with the approach which I have taken in this case, that is not true of the judgment of Hogan J. (in this Court) in I.F. While acknowledging that the judgment of Charleton J. was “powerfully argued and reasoned…” (para. 27 of the judgment) and accepting that the jurisdiction of the Circuit Court (at least in terms of express powers) was not to deal with the “historical position of any given patient”, Hogan J. differed from Charleton J. as the conclusion in Han would render section 28(5) “unworkable”. He felt that the phrase in section 19(1), in respect of the jurisdiction of the Circuit Court, “is suffering from mental disorder” should be reframed as “is or was suffering from a mental disorder”. However, Hogan J. did not address the legally fundamental issue that the Circuit Court has jurisdiction only (under section 19) in circumstances where an admission order has been affirmed by the Tribunal. No such affirming orders were made in the current case, nor could it be in any similar case, as inevitably no such order is in place because of the

decision of the treating psychiatrist to revoke it. The rewording of section 19(1) would therefore be more significant than Hogan J. has proposed, and there is nothing in the judgment of Hogan J. in I.F. that explains why such radical rewording is required.

58. Hogan J. goes on to refer to the principle of generalia specialibus non derogant being called into play; para. 31 of the judgment. He concludes (at para. 35):

‘All of this means that s.19(1) of the 2001 Act must be read as if it read “is or was” suffering from a mental disorder. This means in turn that the Circuit Court is not confined on a s.19 appeal to determine whether the appellant is suffering from a mental illness at the exact time of the hearing of the appeal, but this jurisdiction also extends to determining whether she was suffering from this illness at the time of the Tribunal

decision from which the appeal has been taken. As I already indicated, this modified interpretation of s.19(1) is necessary so that s.28(5) can have real meaning and effect’.

’36. This is the further consequence for the present case that the Circuit Court has a jurisdiction to hear an appeal against the affirmation of an admission order by a Tribunal under s.18 (1), even if – as in the present case – that original admission order has subsequently been replaced by a renewal order. The Circuit Court can accordingly determine whether the Tribunal was correct to affirm that order’.

59. In my view, since the original order was revoked under section 28 (1), there was no continuing order in place at the time of the hearing before the Tribunal (which it was in a position to affirm). As Charleton J. observed in Han, at the time of any s. 18 hearing there can be no real doubt about the mental health of the patient (in a case such as the present one); the treating psychiatrist has already found that the patient is not suffering from a mental disorder. Hogan J. does not engage with, and does not explain, why the legislature would have provided for an appeal on this point when the outcome is utterly predetermined. That is so whether this Circuit Court is to consider the mental state of the patient at the time of the hearing before it, or the mental state of the patient at the time of the hearing before the Tribunal.

60. Hogan J. goes on (at para. 39 of the judgment) to find:

‘But a decision of a Mental Health Tribunal under the 2001 Act affirming an admission order or a renewal order has far-reaching consequences for the constitutional rights of the detained person, including liberty (Article 40.4.1) the protection of the person and his or her good name (Article 40.3.2).’

61. It need hardly be observed that the liberty of the patient is not at issue in circumstances where he has been released. Precisely because the right to liberty is so important, where a person is detained in hospital both the statutory review by the tribunal and the appeal to the Circuit Court are available to ensure that right is vindicated. However, that is not the case here. With regard to the good name of the citizen, and leaving aside the question as to whether or not a finding that somebody suffers from a mental illness is damaging to their reputation, the original finding of mental disorder leading to the admission of the patient is not something that falls within the remit of the Circuit Court (even on Hogan J.'s analysis) and the good name of the citizen cannot be affected one way or the other by giving the Circuit Court jurisdiction to inquire into whether that individual was suffering from a mental disorder at the time of the hearing before the Tribunal. The inevitable answer, in the circumstances of the current case, is in the negative.

62. The Supreme Court judgment in I.F. was delivered by Dunne J. While finding that it was unnecessary to decide the point, and leaving the matter over for fuller consideration in the future, it is of some significance that Dunne J. found that she could not accept the analysis of Hogan J. She went on to find that a literal interpretation of the Act did not permit the meaning suggested by Hogan J., and that his ‘line of reasoning to the effect that the provisions of section 28(5) must be held to prevail over the general provisions of section 19(1)’ was incorrect. She went on (at para. 27):

‘It would appear that the provisions of s. 28(5) which provide for a review in circumstances where the patient has been discharged can only apply historically. The provisions of s. 28(5) refer to a review under s. 18 which is either commenced or if it has not commenced permit the patient concerned to have such a review. This is a review by the Mental Health Tribunal and obviously in circumstances where the patient has already been discharged, there can be no question of either affirming or revoking the order concerned.’ I would respectfully agree with this analysis.

63. Dunne J. concluded:

‘Accordingly, whilst the review takes place under s.18 as provided for in s.28(5), where such a review is required by the patient to be either completed or to be held then, clearly, in those circumstances the section contemplates a historical review.’ The Circuit Court, even where the patient remains in hospital on an involuntary basis, has no ability to conduct such an historical review. As Dunne J has found, such an historical review by the Tribunal is the only form of review open under s.28 (5). It follows that the Circuit Court has no role in respect of such an exercise.

64. Power and Binchy JJ. agree with this judgment. It is our view that, given the fact that both sides are funded by the State, there is no need to make any order as to costs. The parties will, however, be given liberty to apply in respect of this or any other outstanding matter. Such application must be notified to the Court of Appeal Office on or before 5 pm on the 27th of February 2026.

Conclusion

65. The answer to the question posed by the Circuit Court is:

‘The only appeal permissible under section 19(1) of the 2001 Act is against an order affirming a detention order. The scope of any such appeal is confined to the question of whether or not (at the time the hearing of the appeal) the person concerned was suffering from a mental disorder within the meaning of the 2001 Act.’