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1. This is an inquiry pursuant to the provisions of Article 40 of the Constitution into the legality of the detention of the Applicant at St Otteran’s Psychiatric Hospital (the hospital) Waterford.

2. On the 9th November, 2000 the Applicant was arrested by police following an incident in Waterford. Whilst in police custody he described hearing voices in his head and said that aliens were coming to visit him and green blood was pouring from his veins. The police took him to the hospital. At the hospital it was difficult to obtain a comprehensive history from him and he answered some questions by saying that he was from space. He was considered to be suffering from a psychotic illness involving delusions, abnormal thought and hallucinations.

3. When he arrived at the hospital there was an accompanying form for admission as a temporary patient (chargeable) under the provisions of the Mental Treatment Act, 1945. This form was incomplete so the Applicant was offered admission as a voluntary patient which he accepted by signing the relevant forms.

4. On the following day he was seen by Dr Derek O’Sullivan, Consultant Psychiatrist, who was aware of the Applicant’s previous history of mental illness. When he examined him he found him to be deluded about aliens stating that he lived in outer space. The doctor formed the view that there was a relapse in a schizophrenic condition due to poor compliance with treatment. Anti-psychotic medication was commenced.

5. Dr O’Sullivan saw him again on the 13th November, 2000. He continued to be deluded but demanded that he leave hospital. On that occasion the Applicant gave written notice that he wished to be discharged from the hospital. This notice was given pursuant to the provisions of Section 194 of the Mental Treatment Act, 1945 (the Act). That section insofar as it is relevant provides as follows:-

6. On the same day that he gave that written notice namely the 13th November, 2000 he was seen by Dr O’Sullivan. He told the doctor that he had been sent to the hospital from another planet to track down aliens who were there and were causing harm. The Applicant said that his objective was to take them back to their own planet. The doctor found him to have a very elaborate delusional system with paranoid and persecutory components. The Applicant alleged that he had been stabbed in Canada and the United States and shot at, but that people from outer space had patched him up and put him together again. He had no insight into the fact that he had an illness and did not believe that he required medication.

7. It is quite clear that the service of the seventy two hour notice of the Applicant’s intention to discharge himself created a dilemma for the authorities in the hospital because of their concern for his welfare. Accordingly, on the 15th November, 2000 (before the expiry of the seventy two hour notice of discharge) Mr Bernard J Tyers the Superintendent Community Welfare Officer for Waterford and Dr J Power a General Practitioner jointly assessed the Applicant. As a result of their assessment they filled out the appropriate form for a Temporary Patient (Chargeable) pursuant to the provisions of Section 184 of the Act. In his certification on that form Mr Tyers pointed out that the application was not being made by any member of the Applicant’s family because he had no blood relative available to do so and he furthermore expressed the opinion that the Applicant was not capable of deciding to enter hospital voluntarily and was not willing to do so. The General Practitioner expressed the view that the Applicant was suffering from mental illness and required for his recovery not more than six months' suitable treatment and was unfit on account of his mental state for treatment as a voluntary patient.

8. On the following day the 16th November, 2000 and again before the 72 hour notice had expired Dr O’Sullivan again assessed him. He found that the Applicant continued to lack insight into the fact that he had an illness and a need for treatment. He therefore completed the third part of the form which consists of an order that the Applicant be received and detained in the mental hospital as a temporary patient and as a chargeable patient. The doctor avers to the fact that the Applicant was informed of his rights and given a leaflet. The leaflet has been exhibited. It explains the difference between voluntary and involuntary hospitalisation, the necessity for a certificate from an authorised medical officer and that in certain circumstances the patient is entitled to a second medical examination.

9. On the occasion that Dr O’Sullivan completed this form a second opinion was requested from one of his consultant colleagues, a Dr Sheppard, and it was arranged for the Applicant to be facilitated in contacting his solicitor.

10. He was detained in the hospital and his condition monitored. He continued to be thought disorganised and delusional. He was reluctant to take medication and acted in an intimidating and hostile manner towards staff and fellow patients. Medication had to be used on a frequent basis.

11. When he was seen on the 23rd November he continued to demonstrate thought disorganisation and slurring of speech. There was a diagnosis of paranoid schizophrenia with the Applicant being floridly psychotic. It was considered that there was a serious risk to himself and to others and that a failure to treat him would lead to further serious deterioration of his condition.

12. When last reviewed on the 30th November he was found to be demanding and intimidating, was verbally abusive and was kicking furnishings. He had a poor tolerance to frustration and continued to express delusional beliefs. He continued to lack insight into his illness and the need for treatment.

13. It was on the 30th November, 2000 that complaint was made to this Court pursuant to Article 40 of the Constitution.

14. It has been submitted by Counsel on behalf of the Applicant that his detention is unlawful for three reasons. They are:-

15. In order to understand these submissions I should set forth the relevant provisions of Section 184 of the Act and Section 5(3) of the Mental Treatment Act 1953.

16. I do not accept that in every case in which notice is given under Section 194 of the Act there is an absolute entitlement on the part of the patient to leave the institution after the expiration of the seventy two hour period. There is such an absolute entitlement in circumstances where during that seventy two hour period no other statutory provisions are utilised so as to being about the compulsory detention of the patient. In the present case there was an attempt to use such statutory provisions and I will presently consider whether they have been utilised in an efficacious manner or not. However I reject the proposition that in all cases where a notice is given under Section 194 of the Act there is a mandatory entitlement on the part of the patient to leave the institution at the expiration of the seventy two hour period. That mandatory entitlement only arises in circumstances where during the seventy two hour period no other efficacious legal steps are taken which entitle the hospital authorities to continue to detain the patient.

17. It is said that Section 184 could not be used in the present case because in its terms it requires that a proposed patient be “received and detained” . It is said that could not happen in the present case because the patient was already in the custody of the hospital when the

18. Section 184 form was completed. Accordingly it is said that the Section could not have been operated in his case. The effect of this would be that this Section could never apply in respect of a voluntary patient already in the hospital. I do not believe that that can have been the intention of the Legislature.

19. I do not think that there is anything to prevent Section 184 being utilised in respect of a voluntary patient either before or during the period of a seventy two hour notice of discharge pursuant to Section 194. If this were not so it would mean that regardless of how

20. The final point which is made is that because Section 184 was here utilised in the circumstances which I have outlined there was noncompliance with the provisions of Section 5(3)(a) of the 1953 Act. I do not believe this to be correct. The provisions of Section 5(3)(a) of the 1953 Act only apply in circumstances where it is proposed to exercise the power conferred by paragraph (a) of subsection 1 of that Section. That power was not exercised in the present case because the Applicant was already in the hospital and so it was not necessary to convey him there as is contemplated in Section 5(1)(a). It follows therefore that the entitlement which is provided for in Section 5(3)(a)(i) was not triggered. Consequently, in my view, this contention is not made out either. It is to be noted that in fact a second opinion was obtained in the present case and in addition the Applicant was furnished with a written notice as to his rights. Whilst there does not appear to be any statutory obligation to do either of these things in the present case nonetheless they were done and I think it is to the credit of the hospital and its personnel that this was so.

21. In the event I take the view that the Applicant has not made out a case that his present detention is unlawful and consequently this application for release is refused.

22. Finally, I wish to record that I have the greatest sympathy for the medical and nursing personnel who are called upon to operate the provisions of the Act. It is now fifty five years old and badly in need of reform. The Act came into force at a time when the practice of psychiatric medicine bore little resemblance to what it is today. The psychotropic drugs had not even been invented when this Act came into force. It is highly desirable that this legislation be brought up to date. This is not the first time that a judge of this Court has pointed out the necessity for so doing. In R.T. v Director of the Central Mental Hospital & Others (1995) 2 ILRM 354 Costello P. pointed out that the reforms which were enacted in 1981 had never been brought into effect. He said at page 368:

23. That view was approved by Budd J. in the High Court in S.C. v Smith & Others (unreported 31st July 1995). Over five years later it appears that this elusive search for excellence continues. Meanwhile patients, doctors and nurses have to continue to operate in a statutory regime which is in dire need of major overhaul.