Supreme Court dismisses appeal regarding renewal order validity when multiple consultants sign it.

THE SUPREME COURT

No. 081/2008

Denham J.

Geoghegan J.

Macken J.

IN THE MATTER OF AN APPLICATION

PURSUANT TO ARTICLE 40.4.2 OF

THE CONSTITUTION

BETWEEN/

M.M.

Applicant/Appellant

and

CLINICAL DIRECTOR OF THE

CENTRAL MENTAL HOSPITAL

Respondent/Respondent

and

THE MENTAL HEALTH TRIBUNAL

Notice Party

Judgment of Mr. Justice Geoghegan delivered 7th day of May 2008

This is an appeal from a judgment and order of the High Court (Peart J.) in an application under Article 40.4.2 for an order

for the release from the Central Mental Hospital of the above-named applicant/appellant, it being alleged that the appellant’s

continued detention in the Central Mental Hospital is invalid. The above-named respondent had made a return justifying the

detention pursuant to a renewal order in respect of the appellant under section 15 of the Mental Health Act, 2001 made on

the 27th November 2007. On behalf of the appellant, it was argued that this renewal order was invalid for reasons which I

will explain. The above-named Notice Party was joined in the proceedings by reason of its statutory functions under the said

Act of 2001.

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

single net issue.

The Mental Health Act, 2001, although passed in that year, did not come into operation until the 1st November, 2006. Prior

to that time, the detention of the appellant in mental hospitals and the movement from one mental hospital to another was

governed by the Mental Treatment Act, 1945. The appellant’s family live in Cork and when the appellant developed a

dangerous schizophrenic condition involving various illusions which led him to commit criminal acts, he was treated at the

North Lee Mental Health Services, St. Michael’s Unit, Mercy Hospital in Cork. From there because of the seriousness of

his condition, he was lawfully transferred to the Central Mental Hospital in Dundrum, Dublin. This first occurred in 1998

and at that time the consultant psychiatrist treating him in Cork was Dr. John Cooney. The appellant’s detention at the Cork

hospital had commenced on the 13th May, 1998 pursuant to the provisions of section 184 of the Mental Treatment Act,

1945. Dr. Cooney was the consultant psychiatrist who certified him. By virtue of a transfer order and various extension

orders made up to the stage when the 2001 Act came into force, the appellant remained for almost the entire time in the

Central Mental Hospital. For the purpose of all the necessary orders the documentation was signed by Dr. Cooney. Dr.

Cooney kept regular contact with the appellant including visits to him in Dundrum and was continually kept informed in

relation to him. Visits to Dundrum were made with reasonable frequency by Dr. Cooney and on those visits there was a

very good relationship between Dr. Cooney and the appellant. It is not necessary to consider the procedures under the 1945

Act because there is no attack on the validity of the appellant’s detention in Dundrum before the 2007 renewal order was

made. It is argued, however, on behalf of the appellant that under the provisions of the 2001 Act, Dr. Cooney was not the

appropriate doctor to sign the renewal order of November, 2007. It is alleged that that had to be done by the consultant

psychiatrist in daily charge of the appellant within the Central Mental Hospital. There is no dispute that this was a Dr.

Dearbhla Duffy.

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

following transitional provision.

“(1) Subject to the provisions of this section, where immediately before the commencement of Part 2, a person

stood detained under section 171, 178, 184 or 185 of the Act of 1945, he or she shall be regarded for the

purposes of this Act as having been involuntarily admitted under that Part to the institution in which he or she

was so detained.”

Immediately prior to the making of the renewal order in controversy therefore, the appellant was validly in detention in the

Central Mental Hospital by virtue of the said section 72. Section 15 of the 2001 Act provides for the duration and renewal

of admission orders. Subsection (2) of that section reads as follows:

“The period referred to in subsection (1) may be extended by order (to be known as and in this Act

referred to as ‘a renewal order’) made by the consultant psychiatrist responsible for the care and

treatment of the patient concerned for a further period not exceeding 3 months.”

The question is what is meant by the expression “the consultant psychiatrist responsible for the care and treatment of the

patient”. It is not defined in the Act. The expression “consultant psychiatrist” is defined in the Act and is stated to mean

“a consultant psychiatrist who is employed by a health board or by an approved centre or a person whose name is

entered on the division of psychiatry or the division of child and adolescent psychiatry of the Register of Medical

Specialists maintained by the Medical Council in Ireland”. On the facts of this case the issue between the appellant and

respondent is whether the consultant psychiatrist responsible for the appellant’s care and treatment should be regarded as

being Dr. Duffy, as he would contend, Dr. Cooney or both as the respondent would contend or only Dr. Cooney as the

notice party would contend. If the appellant’s contention is correct, that is to say, that the only person falling within the

description is Dr. Duffy then it is contended that the renewal order is invalid and, accordingly, there is no lawful right to

retain the appellant in the Central Mental Hospital. If, on the other hand, “the consultant psychiatrist responsible for the

care and treatment of the appellant” is or includes Dr. Cooney, then the renewal order is clearly valid. The learned High

Court judge considered that both doctors fell within that description. I agree, though this approach necessarily entails a court

giving an unorthodox though purposive interpretation of the definite article before the words “consultant psychiatrist” in

section 15(2) of the 2001 Act.

I turn now to explaining why I have arrived at the same view as the learned High Court judge. My starting point is that I am

convinced that the absence of a statutory definition of the expression “the consultant psychiatrist responsible for the care

and treatment of the patient” is quite deliberate. If as Mr. Feichin McDonagh, S.C. argues on behalf of the appellant, the

expression must necessarily be confined to meaning the consultant psychiatrist in day to day charge of the patient in the

particular hospital in which the patient is residing then it would seem surprising that the Act did not make that clear. It is not

in dispute that certified extensions for detention in Dundrum, prior to the coming into operation of the 2001 Act, were

properly done by Dr. Cooney. It is now suggested that by virtue of the wording in section 15(2) which includes an important

expression undefined, there is a change in that position. If that was so, the Act would have made it clear.

Given the lack of statutory definition it is clearly a question of fact, as the learned High Court judge so found, to determine

whether Dr. Cooney fell within the description when he signed the renewal order. My impression was that counsel for the

appellant either accepted that to be so or at least accepted that it might be so, as a matter of law having regard to the lack of

definition in the Act.

Dr. Cooney was submitted to a gruelling cross-examination by Mr. McDonagh but as I read the transcript the doctor never

wavered from his position that he regarded himself as falling within section 15(2) and he gave clear reasons for holding that

view. Early on in the cross-examination, Mr. McDonagh referred to an affidavit sworn by Dr. Cooney in which he had said

that he was “responsible for the care and treatment of Mr. M”. He was asked whether that was right. Dr. Cooney’s

answer was as follows: “That’s correct. I am his consultant since 1999 and I would consider him to be my patient since

1999 if that answers your question.” This was followed by the question “How is he this morning?”. That type of question

reappeared throughout the cross-examination with a view to demonstrating that Dr. Cooney was not the every day doctor in

charge of the appellant. However, as I will try and demonstrate from further answers, Dr. Cooney consistently and

stridently challenged the implications underlying this form of questioning. When Mr. McDonagh asked Dr. Cooney would it

be normal in his practice not to see a patient for three weeks who was under his care, he replied as follows:

“I think I would have to make the distinction before I answer your question as to the level of care

that I have with M. I would be the consultant responsible for his care overall, the consultant with

the best interest of M at heart overall since 1999. I do not look after him on a day to day basis nor

is anything of what I have said in my affidavit leading the court to believe that, Sir.”

Following further questioning he went on to say that he regarded himself as responsible for the care and treatment of the

appellant up to the present time. He conceded, of course, that he did not look after him on a day to day basis. Dr. Cooney

referred Mr. McDonagh to correspondence he had with Dr. Duffy following on the new Act coming into operation and

following the new certification which was made on the 27th November, 2006. In that correspondence Dr. Cooney said:

“I call to see M regularly anytime I have the chance that I am in Dublin in the interim and that I

would make the next case conference provided I got adequate notice and that I would be in touch

with the family”.

He goes on to refer to the fact that he had a very close relationship with the family and that he requested Dr. Duffy “that

should there be any change in M’s position to please get on to me quickly and I can attend at short notice.” Immediately

following that reference, Dr. Cooney said the following under cross-examination:

“I firmly believe he is my patient and I firmly believe I am overall the best placed consultant

psychiatrist in the country to decide as to his certification, and in particular, as to his

dangerousness, taking advice from my expert colleagues in forensic psychiatry at the Central

Mental Hospital.”

He then said the following:

“I’d also point out to you that it would be far easier for the staff at the Central Mental Hospital, for

the consultants at the Central Mental Hospital, to do the certification. But I, in discussion with my

colleagues there, we both agreed that I was actually the best placed person to do it. So I took a day

from my busy work in Cork to travel to Dublin to review M because I am the expert in M’s overall

wellbeing, and also the expert to what facilities would be available to him should he be returning to

Cork, should he no longer require hospitalisation, or should he no longer require secure

hospitalisation as he currently has in the Central Mental Hospital.”

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

“I think I am overall responsible for M’s care and I firmly believe I am his consultant and I think

his family, if they were here, would be telling you that as well. I think M would actually tell you

that. He had a number of other consultants back over the years who have all retired, so it is me.”

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

“I certainly regard Dr. Duffy as the psychiatrist who is caring for M on a day to day basis but I

regard her care and the staff’s care of M as being, if you like, on loan from service in Cork, from

his home service. They are caring for him as experts in forensic psychiatry but I would feel that I

am overall responsible. If you met me on the train some day coming to Dublin you would say ‘what

are you doing’, I would say, ‘I am going to see a patient of mine in Dublin’. I certainly wouldn’t

say, ‘I am going to see a patient of Dr. Duffy’s in Dublin’.”

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

“I believe I am M’s responsible consultant. I believe he is my patient. I believe Dr. Duffy and her

staff are looking after him on a day to day basis in Dundrum. Should there be any dramatic change

in M’s condition I would expect to be immediately notified. I have put it on record that I am

available at short notice to come and see him. If there was, God forbid, some calamity involved

with M I would certainly be the one, I think, who would be first contacted and I would be the one to

discuss that with the family.”

Dr. Cooney also made the point that although Dr. Duffy was the consultant looking after the appellant routinely during the

day nevertheless, if she was on leave, on holidays, after hours, on weekends or absent from the hospital for one reason or

another Dr. Cooney would deal with whatever consultant was responsible for the running of Dundrum at the time and that

that varied. This, of course, raises another question to which I will briefly return. Dr. Cooney went on to say that he would

be “extremely surprised” if Dr. Duffy, for instance, did not immediately inform him of a “significant incident or turn of

events in relation to the mental disorder” that the appellant was suffering from.

I will refer briefly to Dr. Duffy’s evidence which essentially was entirely supportive of the evidence of Dr. Cooney. When

asked whether she regarded herself as answering to Dr. Cooney in Cork for the way she was dealing on a clinical basis with

the treatment and care of the appellant, she replied as follows:

“No, again, and I think this is being described by Dr. Cooney, I would see M as having his care

and treatment involving a pathway, and along that pathway it involves out-patient treatment, in-

patient. In M’s case in the early stages of his illness, he would have been treated as an out-patient,

then an in-patient with his local service, so that was the early part of his pathway of care. And then

as his illness became more severe he moved to the Central Mental Hospital. And ultimately, the

hope is that M will be returned back to his local services along that pathway of care. So M would

have more than one treating consultant psychiatrist in his pathway of care.”

I regard that answer as not only having importance in relation to the facts of this particular case but as assisting the court as

to how to give what must necessarily be a purposive interpretation to a somewhat ambiguous piece of legislation. Mr.

McDonagh tried to make play of the fact that when apparently the appellant developed a tremor following on taking

particular medication, this fact was not brought to the knowledge of Dr. Cooney. I am satisfied that the evidence establishes

that no significance can be attached to that fact and even without the assistance of the evidence, I would have thought that

as a matter of common sense that would be so. Dr. Duffy, in her evidence, went on to accept that she was the consultant

psychiatrist responsible for the care and treatment of the appellant while he was a patient in the Central Mental Hospital. But

in saying that, she was not in any way, as I read her evidence, derogating from her view that Dr. Cooney was the doctor in

overall charge. If, as I believe, both doctors fall within the description and that a renewal order signed by either would have

been valid, it is immaterial to attempt to work out which might come within the definite article if one was to attach literal

adherence to it.

Unless there was authority clearly holding otherwise, which there is not, I would hold, like Peart J., that both Dr. Cooney

and Dr. Duffy can properly fall within the description “the consultant psychiatrist responsible for the care and treatment of

the patient concerned”. Although it does not arise in this particular case, I would express the view that in a situation where

at the time of the requirement for a renewal order, the consultant psychiatrist in the Central Mental Hospital in the position

of Dr. Duffy, that is to say in everyday charge of the patient was temporarily off work for one reason or another be it illness

or holidays, etc. the temporary replacement consultant in relation to that patient would fall within the definition. Given that

this is an act which in some instances, including this particular instance, is relevant to the important question of detention or

release of patients potentially dangerous to themselves and/or to the public, it would be all wrong to give the legislation an

interpretation which would leave it in doubt as to who would be entitled to sign a renewal order. In JB v. The Director of

the Central Mental Hospital (unreported judgment in the High Court of MacMenamin J. delivered 15th June 2007), the

judge said the following:

“When a patient was transferred to the Central Mental Hospital he retained his original doctor and

the doctor in the Central Mental Hospital was a specialist dealing with his care in accordance with

section 208 of the Mental Treatment Act, 1945. This regime ensured continuity of care. Under the

Act of 2001 a patient cannot be admitted directly to the Central Mental Hospital and must be

transferred there from another hospital. It is the opinion of Dr. Linehan, and all the other

consultant psychiatrists, that a responsible practitioner referred to in the Act is not simply one

person but is rather the psychiatrists, not only within the hospital itself, but may include consultant

psychiatrists outside the hospital, provided they have a real and continuing part in the care and

treatment of the patient. In her view Dr. Hearne comes within this definition.

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

It was suggested by Mr. McDonagh that the views of MacMenamin J. were based on section 21(4) of the Mental Health

Act, 2001 and that he had misapplied that subsection. I do not intend to comment on that controversy as I am satisfied, at

any rate, that MacMenamin J. was essentially influenced by the evidence he heard rather than by the construction of a

particular subsection and it is to be noted that he took the same view as Peart J. that more than one person could come

within the necessary definition. As I have clearly indicated, I am of that view myself. In another High Court decision

referred to in argument WQ v. The Mental Health Commission (unreported judgment of O’Neill J. delivered the 15th

May 2007) that judge did express the view that

“A psychiatrist not attached to the approved centre where the person was detained and not involved

in the care and treatment of the patient concerned but who was brought in for the purposes of

review could not exercise the power of renewal contained in section 15(2) and section 15(3).”

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

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

MM v. CDCMH