2025 IEHC 769

(1)(b); damaging property, contrary to the Criminal Damage Act 1991 section

(1); and arson, contrary to the Criminal Damage Act 1991 sections 2

(1)and

(4)arising from events which occurred on the 31st October

1. Following a trial in the Circuit Court, the jury returned a special verdict of not guilty by reason of insanity on 9th May 2019, on all charges.
2. A special verdict arises where a jury finds that an accused person has committed the act(s) alleged but is not responsible because, at the time of committing such act, he or she was suffering from a mental disorder which prevented them knowing the nature and quality of the act; or that what he or she was doing was wrong; or he or she was unable to refrain from committing the act (2006 Act, s. 5

(1)(a) and (b)). The evidence of a consultant psychiatrist relating to the mental condition of the accused is given in the course of the trial for this consideration (s. 5

(1)). 8. The applicant had been remanded on bail in advance of his trial, which continued after the jury verdict until he was committed by the Circuit Court to the CMH on 5 th of November 2019, pursuant to s. 5

(3)of the Act, for the purposes of assessing whether he was suffering from a mental disorder and may be in need of in-patient care or treatment at that time (“s. 5

(3)assessment”).

1. In his affidavit sworn on the 10th September 2024, the applicant sets out inter alia that, during the course of this bail period, he had resided in the community, in a low-support hostel, without further incident. He had been assessed and detained in an approved centre as an involuntary patient under the Mental Health Act 2001 (“the 2001 Act”) from October 2016 to 2nd February 2017, from where he was discharged on foot of a Mental Health Tribunal direction on 7th February 2017, as no longer suffering from a mental disorder. While living in the community when out on bail, the applicant says he was taking his prescribed medication; engaging with the probation services; attending all of his mental health appointments and visiting his Mum, all without issue. Although some matters in the applicant’s affidavit were disputed in the affidavits of Aisling Brennan, CEO of the Board, on behalf of the respondent and Paul O’Connell of the CMH, this account is largely undisputed.
2. Following the s.5

(3)assessment in November 2019, the applicant was committed by Court Order of the 11th December 2019 to the CMH pursuant to s.5

(2)of the 2006 Act as the Court was satisfied that, at that time, he was suffering from a mental disorder and was in need of in-patient care or treatment in a designated centre. That committal Order has never been challenged. The applicant has been detained in the CMH since. Section 13 of the 2006 Act mandates regular review of such detention by the Review Board.

1. The applicant’s detention has been continually reviewed thereafter, approximately every 6 months, with the June review being the eleventh in sequence. For each of his reviews, he has had the benefit of legal representation, by his most recent solicitor (“his review solicitor”).
2. The applicant challenges the June decision for having no or no adequate reasons.
3. The absence of reasons, the applicant contends, means he is unable to ascertain what was considered by the Board in the June review and in particular whether the Board considered what he asserts it ought to have considered. In addition therefore, as ‘subtended to’ the reasons challenged, the applicant asserts the Board failed to engage with his evidence of his previous positive experience while living in the community; he invited the Court to identify what he contends is the correct statutory test for his detention by reference to s. 5 of the 2006 Act, including expressly establishing the criteria for “mental disorder” as defined in s. 3 of the Mental Health Act 2001 (“the 2001 Act”). He asserts the Board failed to apply that test and failed to consider the various options available for the applicant under s. 13

(2), in particular a conditional discharge. The applicant says he sought, in correspondence in March 2024 from his solicitors in these proceedings, Farrell McElwee (“his proceedings solicitors”), the test applied by the Board for the purpose of a s. 13 review, together with reasons grounding the previous review decision in January, which were not furnished. 14. The applicant’s challenge as originally framed included grounds challenging the absence of a sufficient record of the proceedings before the Board as required by s.12

(1)of the 2006 Act. The Court was informed that a record of every review hearing is made, in accordance with the statutory obligation. It is not routinely provided to the patient but is available on request. Such a record had not been sought by the applicant from the Board in advance of issuing proceedings but was exhibited in the replying affidavit of the Board in response to the proceedings. The challenge to its absence was not pursued at the hearing before the Court.

1. In its opposition, the Board contends that the reason for its determination is evident in the June decision read as a whole but also when read in context, both as to its statutory purpose and in light of the medical report of the applicant’s treating psychiatrist and the evidence given in the review hearing, as noted in the record of the hearing. There was no challenge to the diagnosis of schizophrenia made by the applicant’s treating consultant psychiatrist and no submission made to the Board as to the application of any statutory criteria arising, particularly involving the Mental Health Act
2. The option of conditional discharge was not raised in the hearing but had been addressed by the applicant’s treating psychiatrist in her report. The applicant was legally represented by his chosen solicitor for the hearing.
3. The Board emphasised that the statutory imperative is to consider the question of whether the applicant was ‘still in need of in-patient care or treatment in a designated centre’ as at the time of the review. The applicant’s historical experience in the community pre-dated the Court Order in
4. The applicant could not have been committed to the CMH in 2019 unless that Court was satisfied, following assessment, that the two necessary pre-conditions had been met, namely that, at that time, the applicant was suffering from a mental illness and was in need of in-patient care and treatment. The ongoing review function of the Board was current and forward looking thereafter, with the question for the determination of the Review Board under s.13 being whether or not “the patient … ‘is still in need of in-patient treatment in a designated centre’, with the same range of potential disposals”. Statutory framework:
5. Section 11 of the 2006 Act provides for the creation of the respondent Review Board. Section 11

(2)requires that the Board “shall be independent in the exercise of its functions… and shall have regard to the welfare and safety of the [patient] .. and to the public interest”.

1. The Chair of the Board is required to be a barrister or solicitor of not less than ten years’ experience as a practising legal practitioner, or a judge or former judge of the Circuit Court, High Court, Court of Appeal or Supreme Court. The Board must have at least one approved medical officer.
2. Section 12 of the 2006 Act obliges a solicitor to be appointed to assist the patient where he or she has not engaged their own. A specialist legal aid panel of solicitors was created for this purpose, pursuant to S.I. No. 273/2006, from which Mr Peter Reilly had been assigned to represent the applicant for his review hearings. In response to correspondence received from his proceedings solicitors, Farrell McElwee Solicitors, the applicant expressly confirmed to the Board that he wished Mr Reilly to continue to represent him for reviews before the Review Board. He said Farrell McElwee were to represent him for other purposes.
3. One of the primary functions of the Board is to conduct a review of a patient's detention under s.13 of the 2006 Act, s.2 of which obliges the Board to “ensure that the detention of a patient is reviewed at intervals of such length not being more than 6 months as it considers appropriate”.
4. S. 13 makes clear that, whether the review is activated by the patient (s.13

(8)) or the Board (s.13

(9)), its objective is: “… having heard evidence relating to the mental condition of the patient given by the consultant psychiatrist responsible for his or her care or treatment, [to] determine the question of whether or not the patient is still in need of inpatient treatment in a designated centre and shall make such order as it thinks proper in relation to the patient whether for further detention, care or treatment in a designated centre, for his or her conditional discharge under section 13A or for his or her unconditional discharge”. 22. The Board has published procedures in relation to its conduct of reviews, as required by s.12

(6)(

1. a)– (
2. l)of the 2006 Act. A copy of those procedures was exhibited in the Board’s affidavit. 23. That unchallenged affidavit also outlines the review process. It indicates the Board sits in divisions of three members. The chairperson, who at the time was a former High Court judge, and the counsellor psychotherapist always sit for each review, together with one of the two appointed consultant psychiatrists in rotation. The patient, the patient’s solicitor, the patient’s treating psychiatrist, and any family member or friend the patient wishes to have present can all attend. 24. Review hearings take place in the CMH, where “[t]he Board strives to make the hearings as informal as possible so as to put the patients at their ease and minimise any element of anxiety to them.” All participants are seated around a table. A note of the proceedings is taken by an officer of the Board rather than formal stenography recording “as this would militate against the informal atmosphere [the Board] seeks to promote”. 25. It outlines that, in the conduct of the hearing, “[p]atients are engaged in a conversational manner and invited to participate and comment as they wish. Each patient’s consultant psychiatrist prepares a report for the Board which is made available to the patient and their solicitor in advance. At the hearing, the psychiatrist is invited to summarise the report and update it as necessary. The patient and their solicitor are invited to ask any questions of the psychiatrist or make any submissions or observations if they wish.” 26. The Board’s affidavit also confirms that if a patient wishes to challenge the psychiatric opinion presented, ‘they are free to call such evidence as they wish including that of an independent psychiatrist of their choosing’, though this is rare. The applicant had himself previously commissioned his own psychiatrist for a review in 2021. He had not chosen to do so for this review. The June review hearing: 27. It is common case that the applicant’s then treating psychiatrist, Dr Linehan, had prepared a psychiatric report for the Board for his review hearing in June. This is normal practice and the report follows a standard format familiar to each review. While the respondent indicates this report was sent to the applicant and his solicitor in normal course, the applicant told the Board he had only received it the morning of the June hearing. I do not think anything turns on this as the applicant did not indicate that that had caused him any difficulty nor did he or his review solicitor seek any additional time or an adjournment for its consideration or further instructions. 28. This report dealt with his assessment and progress since his previous hearing in January and was divided into sections covering: • Background information • Index offences • Summary of dynamic risk factors* • Progress since last Mental Health Review Board hearing on 18th January 2024. Pillar 1: physical health Pillar 2: mental health Pillar 3: drugs and alcohol Pillar 4: problem behaviours Pillar 5, 6 and 7: self-care, occupation, social functioning • Current medication • Opinion • Mental disorder • Opinion (in accordance with s.13 of the Act) Renew detention [under the Act] with no change in legal status at present Conditional discharge under s.13A Absolute discharge under s.13 *The summary risk factors arise from the more comprehensive risk assessment annexed, entitled ‘HCR-20 Version 3’ in which the dynamic rick factors for future violence are diagnostically assessed and their current management noted. 29. In the summary of dynamic risk factors in that report, arising from the annexed detailed assessment, Dr Linehan recorded inter alia that the applicant suffers from schizophrenia, had made progress since admission to the CMH with improving his insight into his mental illness but that “[h]is HCR-20 risk assessment reveals the presence of a number of dynamic risk factors for future violence”, which risk factors were “adequately managed in his current placement in Clermont Unit”. 30. Dr Linehan’s report noted that the applicant’s mental state had remained stable since his previous hearing, however he had “reported that he continues to experience intrusive thoughts with violent content […]”, including experiencing “…thoughts of “maybe hitting somebody” once every two weeks” which “he did not feel the need to act on”. He did not believe his mental illness was a contributory factor to his offending and did not agree with the previous Board hearing “that he had been admitted to the [CMH] in the context of his mental health diagnosis”, believing it not “a legal issue but a social issue”, with his homeless status and schizophrenia contributing. He “did not disagree that he had a mental illness.” 31. The applicant’s signs of improvement were acknowledged as were his difficulties with name calling thoughts, fears and “slight thoughts of hitting”. 32. In giving her Opinion, Dr Linehan states: “6.1.1 [DK] suffers from schizophrenia, a mental illness as defined in the Mental Health Act, 2001. He meets criteria for mental disorder as defined in the Criminal Law (Insanity) Act 2006 and the Mental Health Act 2001. In accordance with section 13 of the Criminal Law Insanity Act, I offer my psychiatric opinion as follows: i. Renew detention under the Criminal Law Insanity Act 2006 with no change in legal status at present: I recommend continued detention as it will facilitate [DK] continued care, treatment and rehabilitation in conditions of therapeutic security. This remains necessary because of the current risk assessment (HCR-20 SRAMM) and the related risk management plans arising from it. These are demonstrated by [DK] profile using the DUNDRUM-3 Programme Completion Scale and the DUNDRUM-4 Recovery Scale. These draw attention to [DK]continuing treatment needs. ii. Conditional discharge under section 13A: I cannot recommend conditional discharge at this time because [DK] profile using the DUNDRUM-3 and DUNDRUM-4 shows that there are outstanding areas of concern regarding unmet treatment needs. I am satisfied that he will benefit from a further period of detention and treatment as an inpatient in the Central Mental Hospital. iii. Absolute discharge under section 13: I cannot recommend absolute discharge because [DK] risk assessment shows continuing risk factors for violence which require a structured care and treatment regime if these risks are to be safely managed.” (emphasis added) Affidavit of the Applicant as to the meeting: 33. In a lengthy affidavit sworn on 4th September 2024 for the purposes of these proceedings, the applicant sets out his family and social background; his experience of mental illness; the circumstances he says gave rise to his charges; his trial and ultimate committal to the CMH. He also includes what he says has been his experience there since, including being locked in his room at night and being administered medication without his consent. He sets out his recollection of the June hearing, including having raised his past positive experience in the community. 34. The applicant’s averments regarding his stay in the CMH are contradicted in the Hospital’s affidavit, which denies he is locked in his room in his current placement. The affidavit exhibits written consents to medication signed by the applicant. However, for the purposes of the decision this Court has to make, I do not believe those conflicts require resolution. They were not raised before the Review Board and do not appear in the Board’s decision. The applicant did not respond further to Mr O Connell’s affidavit. 35. The element of the applicant’s affidavit relevant to the court’s consideration is the evidence the applicant says he adduced for the purposes of the June hearing. 36. The applicant, at paragraph 17 of his affidavit, first refers to the previous review decision, of 17th January 2024, and the queries raised in correspondence by Farrell McElwee thereafter. At paragraphs 22-25, the applicant sets out his recollection of the June meeting. He notes the attendees, including his friend and long-time support Mr [M]who, he describes “has been part of the patient ‘family’ advocate group in the Central Mental Hospital; he and others have been involved in seeking to have the hospital reassess its processes for risk assessment.” The applicant notes Mr [M] evidence before the Board that “there was no victim in [his] offence” and in paragraph 25 the applicant sets out his previous positive performance when discharged back to the community by a Mental Health Tribunal who found he was no longer suffering from a mental illness. 37. The record of the meeting differs somewhat in this latter regard. That record noted that the applicant referred to his discharge back to the community as something which “was never brought up at his court case”. Ultimately, nothing turns on this difference as the respondent acknowledges the previous positive behaviour of the applicant in the community but argued that it predates the finding of the Circuit Court in 2019 and therefore can have only minimal if any effect on the assessment of his current medical condition, which is the purpose of the review. 38. In response to the challenge, the Board’s affidavit averred in respect of the applicant that: “6. […] [the Applicant] has previously obtained a report from an independent consultant psychiatrist in relation to a review carried out in 2021. Thus, the applicant has at all material times being aware of his own right to call expert psychiatric evidence to contradict the evidence put before the Board by his treating consultant psychiatrist. […] 7. […] Thus, in the present case, for example, the fact that the applicant may have lived in the community some years ago after the index offence and may thus believe that he can do so again is not necessarily relevant in the context of the expert opinion concerning his present condition and prognosis. 8. At the index hearing, the applicant's friend, Mr[M], who appears to have an interest in advocacy for psychiatric patients, sought to challenge the use of certain assessment tools by Dr Linehan with which he seemed to have an issue, but ultimately Dr Linehan’s professional opinion as to the applicant’s condition and prognosis was unchallenged. There was therefore no issues of fact that required resolution by the Board and no basis advanced for any determination other than the one arrived at. In particular, there was no application made by the Applicant for a discharge, either conditional or absolute. Many patients subject to the Board’s jurisdiction unfortunately do not progress over long periods of time, at least to the extent where discharge might be considered, and it is inevitable that the decisions recorded in respect of such patient at each review will appear similar. 9. As the applicant himself points out, previous decisions of the Board in relation to his case were arrived at in similar terms. Neither the applicant nor his solicitor previously expressed any concerns about these decisions of the Board or suggested that they left him not understanding why he was being detained or how the Board had arrived at its conclusion.” The June decision: 39. As required by s.12

(1)(

1. b)of the 2006 Act, the Board is obliged to keep a record of a review hearing. The record of the June hearing is exhibited in the respondent’s affidavit. It is not challenged by the applicant, whether as to content or accuracy. The Court was informed that the record of a review is not routinely sent to a patient but is available when requested. The applicant did not seek this record in advance of preparing these proceedings, which originally included a challenge to the absence of any such record. This challenge was abandoned in the hearing. 40. The record notes the attendance inter alia of the applicant, his review solicitor, and an accompanying friend, Mr [M]and continue: “Doctor Linehan provided an update since [DK]’s last review. [….] His mental health has been relatively stable but has ongoing thoughts of violence towards others. He has difficulty in accepting his mental illness. He has done insight work over the last year and is currently attending Pillar IV work to help with this. He is independent in his day-to-day activities. His accompanied leave has been increased to weekly. His mother remains his main support and he has regular contact with his friend, Mr[M]. DK continues to suffer with schizophrenia and there are still therapeutic objectives to achieve. Dr Brown asked about DK’s intrusive thoughts. Dr Linehan said that these thoughts are quite upsetting for DK and not thoughts he wants to be having. They are more of a background issue. Dr Brown asked DK if he understood this. He said yes, but these thoughts are niggling at times. He said that he had done hard work and will continue to tell staff about these thoughts. When asked what he thought of the psychiatric report, he said that he'd only received the report this morning. Ms McGarry said it was a good report and noted his leave is increased to weekly. DK said he was grateful for this. He usually goes to the pavilion shopping centre. He said he is also working on saving money. Mr Reilly asked about DK’s insight. Dr Linehan advised that this is an ongoing process and that there is potential for progress. The Chairman asked Mr [M]for his view. He said that DK has no victim, he did not injure anyone and he is not a risk to anyone, in his view. He looked at the Dundrum Toolkit and he has concerns about the way it is used. Doctor Linehan said that she is aware of Mr [M] concerns about the ratings and she has met with him to discuss this. She said the team have training in this area and they will continue to make the ratings as they see fit. The Chairman advised that DK has a mental disorder and he needs insight into this. It is a difficult process but it does not help if he is encouraged to think the other way. The aim is to understand and control the positive symptoms. It is important that all who engage with the patient, encourage this process. Mr [M]said he understands that DK should not have committed the index offence. DK said that in 2016, the Mental Health Commission discharged him into the community for 2 years and this was never brought up at his court case. The Chairman told DK that he is here due to his index offence and his mental disorder of schizophrenia, which is serious. Mr Reilly said that he has tried to explain to DK the necessity to work with Dr Lenihan and the team here. The Chairman advised DK to listen to Dr Linehan and the treating team and go by what they say.”. (emphasis added) 41. The record of the impugned decision is relatively brief and is set out here in full: “Diagnosis [DK]is diagnosed with schizophrenia. Current symptoms His mental state has remained reasonably stable since his last hearing. He does not display any psychotic symptoms but continues to experience intermittent intrusive and negative thoughts. Insight into his illness is improving. He suffered an illness requiring hospital admission. He continues to require care and treatment in the Central Mental Hospital to manage dynamic risks associated with his illness as identified on the HCR-20. Treatment progress Medication: He is prescribed clozapine augmented with a second antipsychotic as well as a range of medications for his physical health needs. Therapeutic programmes: [DK]was transferred to Clermont Unit in March. Staff report he is settled in well. He has commenced Psychology Pillar IV Psychoeducation Programme. He has stated that he finds these sessions beneficial. He has completed the Stress and Anger Management Programme and it was reported that he engaged well. On completion of the Book of Evidence work, he expressed anger and frustration about his treatment by the mental health services. He is engaged with Occupational Therapy regarding money management and has completed five sessions. He intermittently attends the music appreciation and current affairs group. Social: He has accompanied community leave and complies fully with conditions of his leave. He has regular contact with his mother and friend. His friend attended the hearing. Decision of the Board […] [t]he Board is satisfied that [DK]continues to suffer with a serious and chronic mental disorder which requires inpatient treatment and care in the Central Mental Hospital. He is properly detained there and should remain so detained pending further review.” Submissions of the applicant 42. The applicant isolated the “Decision of the Board’ at the conclusion of the document as representing the Board’s decision and asserted it clearly gave no reasons. Alternatively, if the Court were to find reasons, the applicants contended such reasons were inadequate. 43. In respect of the remainder of the decision, the applicant highlighted that as the evidence of his past successful experience in the community in 2017 or the contributions of his friend as to both the ‘victimless’ nature of his crime or the use of the diagnostic testing was not recorded, it could not be said that the Board had taken such matters into account and there was no reason given for rejecting them. 44. Senior Counsel for the Applicant argued more detailed reasoning was required in a s. 13 review decision under the 2006 Act, akin to that as outlined as an ‘aide memoire’ for decisions arising under the 2001 Act by the Court of Appeal in F. C. v Mental Health Tribunal [2022] IECA 290 (“F.C.”) (as suggested in the UK Upper Tribunal decision of H.K. v. Llanarth Court Hospital [2014] UKUT 410), namely: “12. First, it would be helpful if respondents were to set out their reasons by reference to the relevant criteria for detention …. Using headings within the statement of reasons makes it easier to show that the respondent has dealt with each of the legal criteria it has to address […] 13. Second, the tribunal’s reasons should address how the tribunal dealt with any disputes as to either the law or the evidence. If this is not done, the unsuccessful party might believe that the respondent has ignored important issues. In particular, failing to address explicitly any applications made by one or other of the parties may render a set of reasons inadequate. Such an admission certainly makes it more difficult for a party to know why they have been unsuccessful and additionally raises doubt as to whether the respondent had dealt fairly with that party’s case […] 14. Third, the reasons themselves must be clear and unambiguous. It is not for a party to deduce the reasons for a decision. 15. Fourth, rehearsing what each witness told the tribunal is, without more, liable to render a set of reasons erroneous in law. What is required is to explain (
2. i)what facts the tribunal found as a result of that evidence and (
3. ii)what conclusions on those facts they tribunal reached. 16. Fifth, it is not necessary for the tribunal’s reasons to mention all the evidence in a case. It is entitled to be selective in its references to evidence in its reasons although it should, as I have indicated in paragraph 13 above, identify and resolve evidence and applications which are in dispute”. 45. In advancing his contention that the absence of reasons meant that the applicant could not know what test the Board had applied for its determination, Senior Counsel for the applicant advanced a complex submission intertwining the 2001 and 2006 Acts to assert for the application of statutory criteria the Review Board should apply. 46. In brief, that argument asserted that it was incumbent upon the Review Board, at every review hearing, to carry out the same investigation and apply the same statutory criteria as occurred when the trial court determined to make its order to commit a person pursuant to s. 5

(2)of the 2006 Act in the first place. This obligation arises, it was submitted, due to the objective of s. 13 of 2006 Act being to “determine the question of whether or not the patient is still in need of in-patient treatment in a designated centre”, language reflective of the initial determination made by the court under s.5

(2)of the Act that the person “is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre”. As s.5

(2)of the 2006 Act requires a determination on whether or not the patient suffered from a mental disorder ‘within the meaning of the Act of 2001’ prior to initially determining on committal, this required the Review Board carrying out a review under s.13 of the 2006 Act to also apply the statutory criteria relevant to establishing a “mental disorder” within the meaning of the Act of 2001. 47. This led Senior Counsel for the applicant to complain that neither the applicant’s treating psychiatrist, Dr Linehan, (in her report or oral evidence) or the Board had engaged with the criteria for ‘mental disorder’ within the meaning of s.3

(1)(b)(i) and s.3

(1)(b)(ii) and s.3

(1)(a) of the 2001 Act or with the applicant’s detention in a designated centre under the 2006 Act rather than an ‘ordinary’ approved centre as is possible under the 2001 Act.

1. Consequently, it was argued that, as there were no reasons given in the Board’s decision as to how it determined the applicant was still suffering from a mental disorder within the meaning of the 2001 Act, the Court cannot know that the process contended for by the applicant was, in fact, used and in particular whether the Board had interpreted the statutory criteria correctly; how the criteria were applied; what the legal test operated by the Board was or why the Board concluded it was satisfied of the need for ongoing detention.
2. In addition, the absence of reasons meant that the applicant could not know whether the Board had engaged with the evidence before it or considered the options open to it or whether to challenge the decision in another forum.
3. Under the umbrella of the duty to give reasons therefore, as ‘subtended’ thereto, the applicant sought to address a broader more substantive argument concerning what were the obligations on the Board, asserting that, in exercise of its independent oversight of a person’s detention, all such broader issues were properly a matter for the Board, of its own volition, to address in every review regardless of whether or not raised by or on behalf of the patient at the time. Submissions of the respondent
4. The respondent argued that it was inappropriate to isolate one part of the decision and the reason underlying the June decision were given in the decision read as a whole but also when considered in the context of the materials before the Board, including Dr Linehan’s report and the content of the review meeting, as evident in the record. Further, it submits that those reasons are adequate and addressed the principal issue which the respondent is required to determine, namely whether or not the patient is still in need of in-patient care or treatment pursuant to s. 13 of the 2006 Act.
5. The extent of the duty on a decision-making body to give reasons, the Board contends, depended on the nature of the question to be determined and the issues in dispute. A decision cannot be divorced from its context, the matters leading up to it and the involvement of the applicant in the process. The respondent relied upon M.R. v. Byrne [2007] 3 I.R. 211 as to the Court’s consideration of adequacy of reasons in a decision: “[51] … In approaching an assessment of the decision of the respondent as revealed by the record of it, both as to substance and form, in my view it is not appropriate to subject the record to intensive dissection, analysis and construction, as would be the case when dealing with legal binding documents such as statutes, statutory instruments or contracts. The appropriate approach is to look at the record as a whole and take from it the sense and meaning that is revealed from the entirety of the record. This must be done also in the appropriate context, namely the record must be seen as the result of a hearing which has taken place immediately before the creation of the record and it must be read in the context of the evidence, both oral and written, which has just been presented to the tribunal. The record is not to be seen as or treated as a discursive judgment, but simply as the record of a decision made contemporaneously, on specific evidence or material, within a specific statutory framework, i.e. the relevant sections of the Act of 2001, as set out above.”
6. The respondent argued that this case concerned reasons, pure and simple, and any effort to expand the challenge ought to be rejected by the Court as such arguments were never raised before the Board, as the decision-maker.
7. It was clear in the decision, properly read, why the Board concluded the applicant continued to be in need of inpatient care or treatment. It argued that it was wrong to isolate the decision in the conclusion from the findings which preceded it in respect of the applicant's diagnosis, current symptoms and treatment progress.
8. In the applicant’s case, it was clear that there was no dispute to be resolved. There was a clear diagnosis of a mental disorder, namely schizophrenia, as set out in the report of the applicant’s treating psychiatrist. This diagnosis was never challenged either by the applicant or his legal representative during the June hearing which could necessitate revisiting the definition of ‘mental disorder’ under the legislation.
9. The progress which the applicant was making in his treatment was acknowledged and any ongoing difficulties and risks outlined to the Board, whether as ascertained on interaction with the applicant or by way of diagnostic testing. There was no medical challenge to the diagnostic testing utilised. Any enquiries on such testing raised by the applicant’s friend had been addressed with him by the medical team, which had been expressly trained in such formal testing.
10. The Board invited the Court to reject what it described as the elaborate attempt by the applicant to broaden the scope of the hearing to encompass the far wider trawl of requirements the applicant was seeking to be read into s.13 of the Act. Whatever the arguments were, the fact was that they were not raised before the Board in the hearing itself, as was clear from the contemporaneous record of the hearing.
11. The respondent Board submitted that the Court of Appeal’s view’s in F.C. must be seen in its context, where the resolution of a key disputed fact was at its core. In F.C. there had been specific evidence by that applicant that he would keep to his medication if living in the community, contrary to the views of a number of psychiatric reports, including one commissioned by the applicant himself. The Mental Health Tribunal had delivered a split decision, with the majority being silent on this issue such that it was unresolved in the decision. In the instant case, there was no dispute to be resolved. There was no challenge to the expressed diagnosis of schizophrenia or to schizophrenia being a “mental disorder”. There was no medical challenge to the diagnostic testing used, despite the applicant being aware of his right to source his own independent psychiatrist. There was no dispute over the applicant’s past experience in the community, however such experience pre-dated the Circuit Court’s finding in 2019, which justified the applicant’s detention in the CMH.
12. Counsel highlighted the difference between the consideration under s.5

(1)of the 2006 Act, being backward looking, ex tunc, to ascertain the position pertaining when the events leading to the charges were committed, and the assessment under s.5

(2)or s.5

(3)being ex nunc – how is the patient now. The focus of the Review Board under s.13 must be forward looking to ascertain if the applicant was “still” in need of care and treatment in a designated centre. It required an examination of the current status of the patient and his or her ongoing need for treatment. 60. The respondent submitted that any option of conditional discharge, along with continued detention or unconditional discharge, had been expressly addressed in Dr Linehan’s report and no issue was taken with her analysis or opinion. The applicant had not contended for conditional discharge. There was no obligation on the Board to independently examine such options when the evidence before it did not suggest it was appropriate or timely. 61. In respect of any concern over what test was to be applied by the Board for its consideration, the respondent contended it was particularly telling that no such query was raised by the applicant before the Board, given the prior correspondence. The request made by correspondence from Farrell McElwee had been left in abeyance following the last response letter of the Board, with no concerns expressed to the Board when the June review actually occurred. The applicant’s original solicitor, who had continuously represented him for his previous review hearings, and who was the express choice of the applicant for his ongoing reviews, had not felt the need to raise any queries to the Board. In the subsequent December review, he had distanced himself from the legal proceedings. 62. The Respondent submitted the proceedings resulted from the applicant’s instruction of two different solicitors; one who was not present in the review hearing but was instructed to initiate these proceedings; and the other who was acting for the applicant in the review hearing, as he had consistently done before, but who had distanced himself from this challenge. The applicant’s proceedings solicitor was raising complex and detailed legal arguments concerning the tests to be applied by the Board and its obligations that simply had never been put to the Board itself- either by the applicant, his review solicitor or his accompanying friend. Conclusion: 63. The requirement on the Board under s.13 of the 2006 Act is twofold, firstly to hear evidence relating to the applicant’s mental condition from his treating consultant psychiatrist to determine that the applicant was “still in need of inpatient treatment in [the CMH]” before it is then obliged to “make such order as it thinks proper in relation to the patient” as between the three options of continued detention, conditional discharge under s. 13A or for unconditional discharge. The inclusion of the word ‘still’, in my view, reflects the ongoing nature of review by the Board following an initial committal which determined a person is suffering from a mental disorder and is in need of such inpatient treatment at that time. 64. While each review is individual, it is also cumulative in that a patient’s treatment and progress in the CMH is repeatedly examined at not greater than 6 monthly intervals following his or her committal. The diagnostic test accompanying Dr. Lenihan’s report sets out the applicant’s previous scoring for comparison. Two of the three Board members are consistently present for each review. The impugned review decision is the eleventh in a series for the applicant, all in similar format. 65. The review arises in a context. It is informal in nature, not overly legalistic. Its focus is therapeutic. Legal protections are built into the 2006 Act, including the provision of legal assistance for the patient. The significant legal and medical expertise required of the deciding Board by the 2006 Act facilitates such informality. 66. The “Decision of the Board” section in the decision simply records the decision made by the Board. Taken as an isolated extract, the applicant is correct that it lacks reasons. However, it is well settled law that it is not appropriate to isolate one part of a record, divorced from the remainder of the decision itself or from the context in which it arises. 67. F.C., (at paragraph 56) confirms that: “The answer to this question [whether the reasons given were adequate] is not only context-specific, in the sense of the legal context in which the decision is being made, but also case-specific in the sense that the issue turns on the specific language used in communicating the particular decision in the context of the hearing which has gone before, including the evidence adduced and the submissions made. Accordingly, […] the Court must keep to the forefront of its consideration of the present case the two matters identified above (

1. a)the particular legal context in which the decision was being made; (
2. b)the language and immediate circumstances of the decision in question.” 68. In F.C., the Court of Appeal considered both the ‘aide memoire’ arising from the UKUT case of H.K., which the applicant urged on the Court, and the case of M.R. relied upon by the respondent (both extracts cited above) before concluding at paragraph 60 that “[t]he giving of reasons must be done within the parameters of what was said in both of the above cases”. 69. An impugned record must be looked at as a whole and in light of the evidence, oral and written, given in any hearing which preceded it when reviewed. This decision comes after a hearing in which the applicant, legally represented, was a full participant and upon further documentation and oral evidence. 70. The Court in F.C. (at para 58) held that “there is a balance to be struck” as between the wording of a decision and the context in which it was made, reminding that “[i]t is of course ultimately a question of substance and not form, and there must be an element of common sense and practicality in approaching the question of the adequacy of reasons”. 71. It should be noted that the circumstances in F.C. are very different to the present case. I accept the argument on behalf of the respondent that F.C. is distinguishable, not only on its underlying facts and its legal context, but most importantly in that there was no fact in dispute in this case requiring resolution in the June hearing, as was key in F.C. 72. In F.C. there was no dispute that that applicant suffered from paranoid schizophrenia. Evidence had been given by that applicant in his Mental Health Tribunal hearing on his intention to keep to his medications if discharged to the community, notwithstanding appropriate supports were not available to him outside a hospital environment. Evidence by three expert psychiatrists, one of whom had been commissioned by the applicant himself, of the realistic possibility that the applicant would not maintain compliance with his medication regime, leading to relapse requiring readmission to hospital, had also been given. The psychiatrists were in agreement that the absence of supports in the community adequate to his needs could give rise to a real risk of indefinite detention notwithstanding treatment in the hospital during her involuntary detention was effectively complete. As is evident in paragraphs 60-62 of the judgment, the Court of Appeal was particularly concerned that the (majority) decision of the Mental Health Tribunal in F.C. had not resolved the dispute between the evidence of the applicant and the psychiatrists on the applicant’s likely compliance with his medication regime in the community. Additionally, that decision had not referred to the evidence as given by that applicant nor indicated why it preferred one over the other, particularly as the minority had dissented on that particular issue. Notably, the evidence of the applicant in F.C., “on the key issue which fell for decision”, was his likely functioning for the future. Where, in F.C., (at paragraph 61), the Court of Appeal admonished that that Mental Health Tribunal “should have referred to [that applicant’s evidence which related to a key issue to be determined] and given some indication that it had considered it and why it was rejecting it”, such admonition related to a fact in dispute, which does not arise here. 73. The position of the applicant in this case is very different. He did not assert full insight into his illness or future compliance with a medication regime. He did not present any medical evidence to contradict the report of Dr Linehan which might require resolution by the Board. His treatment in the Hospital is not complete. Irrespective of any differences in precisely what he may said to the Board concerning his past positive behaviour, or why, there was no dispute that it was experience prior to the Circuit Court committal order in 2019. That Court Order was premised on expert opinion as to his mental disorder in 2019. This Court finds the arguments advanced by the respondent compelling, particularly regarding the current and forward-looking focus of the Board’s obligation in any review under s. 13 of the 2006 Act. 74. There is a wealth of authority on reasons and their adequacy. In the instant case, and notwithstanding any differences in factual basis or legal context with F.C., I am satisfied that the decision of the Board falls within the parameters of the two cases predominantly relied on in argument from that case. That a decision may fall closer to one parameter than the other does not invalidate it. 75. It is trite law to repeat that a decision-maker is not obliged to address in a decision every detail arising. This must carry even more weight in respect of challenges or arguments which did not arise or were not pursued before the decision-making body, as in the case of the complex legal test contended for by the applicant before this Court but not advanced before the Board. The finding of Dr Lenihan at paragraph 6.1.1 of her report that “Mr [DK] suffers from schizophrenia, a mental illness as defined in the Mental Health Act, 2001. He meets criteria for mental disorder as defined in the Criminal Law (Insanity) Act 2006 and the Mental Health Act 2001” could not be clearer and was not queried or challenged by the applicant. 76. In so far as any queries were raised by the applicant’s proceedings’ solicitor in an exchange of correspondence subsequent to the January hearing, the Court is satisfied that they were not ultimately pursued before the Board, which is the appropriate first forum for such consideration. 77. The statutory imperative of the 2006 Act is clear: once committed by a Court, it is for the Board, as the independent, specialist statutory body charged with such function, to consider and determine the continued detention or discharge of a person for whom a jury has returned a special plea. It is not the function of the Courts to adjudicate on that matter. 78. It is nothing new to restate that what must be evident in the decision, taken as a whole and read in its appropriate context, is that the issues material to the decision that must be taken into account were considered by the decision-maker. A reviewing court must always remain vigilant in its review of the decisions of lower courts or decision-making bodies, particularly so where a decision involves the deprivation of a person’s liberty and more particularly so in the case of a vulnerable such as a patient with a significant mental health illness. 79. In the instant case, I am satisfied that the reason for the Board’s decision is evident in the decision properly read. The decision notes the applicant’s current (undisputed) diagnosis of schizophrenia and expressly attributes his continued requirement for care and treatment in the CMH “to manage dynamic risks associated with his illness as identified on the HCR 20”. His antipsychotic medication and his ongoing psychological support and education needs in the Hospital are all set out. 80. The decision does not address every detail advanced either by the applicant or Dr Lenihan (in her report or oral evidence) or other contributors, but rather it reads as a record of the key findings by the Board under headings most pertinent to the making of its Order under s. 13 of the 2006 Act. It reflects the contemporaneous record of the meeting where Dr Lenihan had outlined the applicant’s “ongoing thoughts of violence towards others” and his “difficulty in accepting his mental illness” while noting he had “done insight work over the last year and is currently attending Pillar IV work to help with this”. DK continues to suffer with schizophrenia and there are still therapeutic objectives to achieve.” 81. The decision highlights the improvements the applicant has made in a manner directly pertinent to the Order the Board has to make, while also identifying the reason why the applicant continues to require care and treatment in the CMH, namely, to manage the dynamic risks associated with his illness that remain. 82. The language is not overly-legalistic and includes terminology familiar to the patients in the Hospital, such as the particular ward unit (Clermont) to which the applicant had recently moved or the psychology Pillars he is currently working through, that provide treatment or educational structure. The wording of the decision, for a lawyer, might be more fulsomely framed. To a non-lawyer and in particular to a patient who wants to know what was key to the reviewing Board when making its decision, in my view, it is understandable that such a decision is not framed in lawyerly language or detail, provided that the decision can be seen to fall within the parameters of what is required. In the context of a process which is therapeutic in nature and designed to be as informal as possible, in ease of a patient, the absence of a lengthy, discursive decision, debating every representation made, or envisaging legal ones not yet made, should not be dissuaded. 83. The Court is also satisfied that the Board’s decision is sufficiently reasoned when viewed in the context of the hearing immediately preceding it. This is evident in the contemporaneous record exhibited in the respondent’s affidavit, where oral evidence was given and examined and in which the applicant, his solicitor and his friend actively participated, together with the relevant documentation underpinning the review, including the report of Dr. Linehan, all of which support the rationale of the decision. The formal analysis document identifying dynamic risks is expressly referenced in the decision. Dr Linehan in her report had set out the applicant’s progress, the results of the formal diagnostic tests and a comparison with his two previous review performances. The resulting picture painted was one of progress and improvement but not yet resolution. 84. In this regard, the decision records the applicant’s progress in areas that may lead to such potential discharge, including his increasing community leave (pursuant to s. 14 of the 2006 Act) and the Occupational Therapy he continued to enjoy, assisting in managing his money. I do not accept the applicant’s contention that the Board, of its own volition, should conduct an examination of the potentiality for conditional discharge at every review and therefore should have done so in the June review. 85. The affidavit of Aisling Brennan outlined: “10. There is a clearly established pathway to discharge operated by the CMH, and obviously the goal for every patient is recovery and discharge. There are a range of different wards with different regimes through which patients will pass starting with high security and supervision and ending with pre-discharge wards where the patients will by then have achieved sufficient recovery to be considered for re-joining the community. Before that, patients will typically obtain accompanied leave starting with two staff for short periods locally and ending with unaccompanied leave often daily for lengthy periods. Leave from the CMH requires the sanction of the Minister for Justice and is not a function of the Board [pursuant to s. 14 of the 2006 Act]. 86. I reject any consequential suggestion that the three potential options open to the Board when making an Order under s. 13: continued detention, conditional discharge, or absolute discharge, were not before the Board for its consideration or the applicant’s input. All three options were assessed by Dr. Linehan in her report. As can be seen above, her expert opinion recommended continued detention, which was consistent with her assessment of the applicant set out earlier in the report. Dr. Linehan expressly considered the option of conditional or unconditional discharge and recommended against both. No challenge was raised against her recommendation. The issue of conditional discharge was never suggested to the Board. The Court was informed that that significant preparation is required before a conditional discharge can be put in place for any patient, both with the patient and in the community, which takes time, over a number of reviews, when arising. 87. In respect of the argument advanced before the Court regarding the test or statutory applicable to a s. 13 review process. The applicant’s contention had not been raised at any of his prior review hearings and was not advanced in the June review, which followed the same presentation and delivered a decision in like format as previously. It was not raised in the correspondence subsequent to the January hearing. The argument was of some complexity, intertwining different sections of the 2006 and 2001 Acts. As I am of the view that such argument ought first be advanced before the decision maker, I express no comment on the statutory process contended for by the applicant which may be advanced in the future. 88. I do not accept the applicant’s complaint that the absence of any reference in the Board’s decision of the contribution made by his friend, challenging the diagnostic tests used by Dr Lenihan and her team meant that it was not considered. The record of the hearing demonstrates that this was raised and dealt with in the course of the hearing, where Dr Lenihan had previously explained their use and the training of the team to Mr M. 89. I also do not accept the applicant’s contention that the Board, of its own volition, should examine the potentiality for conditional discharge at every review or agree that this was not done in the June review. Firstly, the three potential options open to the board, continued detention, conditional discharge, or absolute discharge, were all assessed by Dr. Linehan in her report. Her expert opinion recommended continued detention, consistent with her assessment of the applicant set out earlier in the report. No challenge whatsoever was raised against her recommendation. The issue of conditional discharge was never suggested to the Board. 90. In any event, the respondent outlined to the Court that significant preparation is required before a conditional discharge might be put in place, both with the applicant and in the community, which takes time. The decision notes the applicant’s progress towards what might lead to such potential discharge however, including his increasing community leave (pursuant to s. 14 of the 2006 Act) and the occupational therapy he continued to enjoy to assist in managing his money. 91. Whether these proceedings emerged from a conflicting view taken by one solicitor who ‘sought to correct the other’s homework, as it were’, as colourfully described by Senior Counsel for the respondent, or not, it is difficult to escape the simple fact that the legal issues sought to be argued in these proceedings were not in issue before the Board during the applicant’s June review hearing. In so far as there is a divergence between the approach of the applicant’s review solicitor, Mr Reilly and that of his proceedings solicitors, Farrell McElwee, any conflict had been resolved for the purposes of the review by the applicant himself. The matters raised by Farrell McElwee in correspondence did not feature in the applicant’s June hearing, in which they took no part. It is inappropriate in my view for any applicant in effect to play two different sets of solicitors off each other. Rather it is incumbent upon him or her to ensure consistency of instruction to any legal representative and avoid confusion. 92. For the reasons outlined above, I refuse the applicant’s application. 93. By way of a footnote, a number of matters did not, by agreement, proceed during the hearing of these proceedings, pending the determination on the validity of the June decision. They included the issue of mootness, in light of the subsequent unchallenged review in December2024, and a consideration of what consequences would flow from any finding of invalidity of the June decision. In light of my determination that the June decision is valid, such additional matters do not now arise. For completeness however, the Court notes the affidavit filed on behalf of the CMH in respect of the applicant’s ongoing admission in the Hospital and the submissions of the Hospital’s Senior Counsel. As this judgment has been delivered electronically, I will list the matter at 10:30 for two weeks hence or some date suitable to the parties, for final orders.