Mental Health Act ‘unconstitutional’: Suspension of finding an innovation

The Court of Appeal has decided the Mental Health Act 2001 is unconstitutional, but has suspended the finding for a period of six months to prevent it having “catastrophic” consequences.

The idea of suspending for a period a decision that one of our laws is unconstitutional is an innovation introduced by the Supreme Court last year, when it ruled on a case involving the right of asylum seekers to take up employment.

In his Court of Appeal ruling on the Mental Health Act, Mr Justice Gerard Hogan said it was necessary to suspend the decision for six months because of the serious implications the finding would have for the mental health regime.

The decision that the law is unconstitutional affects up to 100 people in psychiatric institutions, including 15 patients in the Central Mental Hospital.

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The legal basis for the detention of these vulnerable people would “collapse” if the court’s ruling had immediate effect, with potentially disastrous consequences for the people directly affected, some of whom might also pose a risk to the lives and safety of others if released back into society.

Mr Justice Hogan said it was clear, from the Supreme Court decision of Mr Justice Donal O’Donnell in the 2017 case involving the right to work, that a finding of unconstitionality can be suspended.

Remorseless logic

The lesson of the Supreme Court ruling, Mr Justice Hogan said, is that the judiciary should not have to “watch on helplessly” as a finding of unconstitutionality leads on with remorseless logic to unravel administrative decisions in a chaotic and disruptive fashion.

A consequence of the ability of courts to temporarily suspend findings of unconstitionality is that judges contemplating the constitutionality or otherwise of our laws do not have to be, consciously or unconsciously, affected by the consequences of making findings of unconstitionality.

Mr Justice Hogan said the Oireachtas and the Government can use the “window of opportunity” now afforded them to introduce fresh legislation.

In the Supreme Court decision in May 2017 on asylum-seekers seeking employment, the seven-judge court adjourned making any formal orders for six months to allow the legislature consider how to address the situation.

A difference between the two cases is that in the mental health case before the Court of Appeal, the HSE and the State had lost in the High Court, whereas in the asylum-seeker case, the State had won in the lower court.