Action reveals legal failure over release conditions

A HIGH Court action by a man found not guilty of murder by reason of insanity has exposed an apparent defect in new mental health laws in failing to provide any means of enforcing conditions on the discharge from the Central Mental Hospital of persons no longer deemed mentally ill.

The State yesterday expressed the view that the man, who cannot be named for legal reasons, is entitled to be discharged, even though it also accepted conditions deemed necessary on that discharge are not enforceable.

During yesterday’s hearing, lawyers for the Attorney General, the man, the Mental Health (Criminal Law) Review Board and the Central Mental Hospital all agreed that the Criminal Law (Insanity) 2006 Act contains no mechanism to enforce conditions on the discharge of a person detained at the hospital when that person is deemed to no longer have a mental disorder or to require in-patient treatment.

Mr Justice Michael Hanna has reserved judgment on the challenge by the man to the refusal in June 2007 of the review board to discharge him from the hospital, despite it finding he was no longer mentally ill. The man is seeking clarification of the relevant law and the court’s decision will have implications for similar cases.

The man has been in the hospital for some years; has been deemed for years to have no mental disorder; has been on temporary release for four days a week for some time and has abided by the conditions of that release.

However, the board, which under the Act has replaced the Minister for Justice as the entity determining whether persons at the hospital may be discharged, decided the man should not be discharged as it appeared the 2006 Act contained no mechanism to enforce conditions on his discharge. The hospital said the man should be freed on enforceable conditions.

Yesterday, Tim O’Leary SC, for the State, said there was no mechanism under the Act to enforce conditions and he accepted the man was entitled to an order for his conditional discharge.

Anthony Aston SC, for the board, said the position adopted by the State represented a misinterpretation of the board’s powers under the Act. While that Act was defective in not providing a means of enforcing conditions on discharge, the court must take into account the interests of the patient and the public in interpreting it.

The Act afforded the board a discretion on discharge and the public interest must play a part in the decision, he said. The evidence indicated the man should not be released, except on conditions.

The court heard hospital psychiatrists had agreed he no longer suffers from a mental disorder and does not require treatment, but they also said he should only be discharged on specific conditions as they were concerned about anger management issues. The man said he would agree to the conditions.

Feichin McDonagh SC, for the man, argued the board was not entitled to refuse discharge as this amounted to preventative detention not permitted under the Constitution or the European Convention on Human Rights. He said the board was a State organ and had a statutory obligation to conduct itself in accordance with the State’s obligations. There was no statutory basis for the man’s detention as the board had found he no longer had a mental disorder or required treatment, he added.