It is clear that, while the legislature saw fit to permit the Tribunal, assembled consequent upon the making of a Renewal Order, to affirm the order where errors had occurred in certain limited circumstances, no provision was made for amendment. Section 18 of the Acts permits the affirming of the order if there has been a failure to comply with stated statutory provisions, provided the failure "does not affect the substance of the order and does not cause an injustice." In addition, the judgment of Hogan J. in P.D. v. Clinical Director, Department of Psychiatry, Connolly Hospital [2014] IEHC 58 , again considering errors in statutory forms, stated:
"It may be that the Oireachtas might well consider amending the 2001 Act to enable obvious clerical errors of this king to be corrected by means of a form of slip rule procedure, along, of course, with safeguards and external supervision of any changes to an admissions order or renewal order."
The Oireachtas has not so amended the legislation and it is clear that Hogan J. did not envisage such amendment as being possible under the extant legislative regime. It is also to be noted with concern that the purported amendment of the Renewal Order in this instance was done without openness and transparency. There is nothing on the face of the Order itself which indicates that it was amended in any way (which was concerning given that a minor contemporaneous writing clarification made at the time the original Form 7 was completed was initialled). The insertion was simply made and the form resubmitted to the MHC on the 12 th February 2024, retaining the Renewal Order date of the 9 th February 2024 (which was also the date upon the Certificate of Detention provided to me) notwithstanding that this clearly resulted in a failure to comply with the statutory time limit for notifying the MHC as provided for in section 16 of the Acts.
I was furthermore referred by the Respondent to the decision of the Supreme Court in P.O.I. v. The Governor of Cloverhill Prison [2018] 3 IR 602 as being permissive of amendment of the Renewal Order. The circumstances of that case were very different to the present, there being a two stage process whereby the warrant under consideration was giving effect to a court order. Dunne J. stated:
"[47] Where there is an underlying valid order of a court committing an individual to prison, it may be possible to amend the warrant. However, as has been accepted by the respondent in the written submissions, where the warrant cannot be corrected, because the ambiguity on the face of the warrant reflects a more deep-seated confusion in the proceedings such as where the true state of affairs is not reliably ascertainable from any source, this cannot be done. To put it another way, in circumstances where a warrant is defective in that it does not reflect the court order actually made, it may be possible to go back to court to amend the warrant to reflect the court order. That is assuming that there is a valid court order in the first place. If the underlying basis of the detention is invalid then the individual detained is entitled to be released. A trivial error or slip in the completion of the warrant will not be fatal to its validity. There could be no reason not to amend in such circumstances."
In the present case, I find that there was no trivial error or slip but rather the date to indicate the duration of the detention was omitted from the document. This is a serious and fundamental situation and clearly distinguishable from the POI situation.
Undoubtedly, there are statutory review mechanisms incorporated into the Acts and not all mistakes or errors will be such as justify Article 40.4 relief. In this regard, I would make reference to AB v. Clinical Director of St. Loman's Hospital [2018] 3 IR 747, paragraph 104:
"... the jurisdiction of the High Court in Article 40 applications is confined to ensuring that the admission or renewal order is valid on its face and that there was no violation of constitutional rights or other serious legal error in the making of the order."
I find that the error in this instance was such that it comes within the jurisdiction outlined in the above dictum .
The Applicant additionally argued that the detention of the Applicant was unlawful due to the failure of the Respondent to comply with Section 16(1)(b) of the Acts in that the "amended" Renewal Notice, with the expiry date inserted, was never served upon the Applicant. The patient, it is argued, was not given notice of the making of the order but rather was given notice of the making of an invalid order. It is clear that a Patient Notification Form was served upon the Applicant on the 9 th February 2024. It is clear that this Form contained all of the necessary information including a detention expiry date. Importantly, this Form did include the important information required to be included pursuant to section 16(2) of the Acts. It is my view that the kernel of this matter relates to the validity of the Renewal Order and that it is in this regard that Article 40.4 is engaged. In so far as issues may arise in relation to patient notification, the Patient Notification Form which was served would come squarely within the ambit of section 18(1)(a)(ii) of the Acts in that any such issues do not affect the substance of the order and do not cause an injustice.
In consequence of the foregoing and subject to Paragraph 21, I direct the release of the Applicant pursuant to Article 40.4 of the Constitution as I am not satisfied that he is detained in accordance with law.
Having regard to the report of Dr. E., which was exhibited in an Affidavit before me, which report was not contradicted in any manner, the Respondent entirely appropriately submitted that in the event that the application was successful, the release of the applicant should be delayed as envisaged in the FX v. Clinical Director of the Central Mental Hospital [2014] IESC 1 . I will order such delayed release and I will rule on the terms thereof upon hearing the submissions of the parties in this regard.