B -v- Mental Health (Criminal Law) Review Board and Ors: High CourtJudgment was delivered by Mr Justice Michael Hanna on July 25th, 2008.
Judgment
The detention in the Central Mental Hospital in Dundrum of a man who had been found not guilty of murder by reason of insanity and who was now held by his doctors to no longer suffer from mental illness and who enjoyed temporary release, was not contrary to the Constitution or the European Convention on Human Rights.
Background
The case originated in 2000 when the applicant killed his five-year-old daughter while he was suffering from severe mental illness and was suicidal. He was detained in the Central Mental Hospital, Dundrum. Eighteen months later a jury found him guilty but insane and the judge ordered that he be detained under the 1882 Trial of Lunatics Act "until the pleasure of [the Government] shall be known".
Since then, the Mental Health (Criminal Law) Act 2006 has been enacted and its provisions now apply to the applicant. The relevant verdict now is "not guilty by reason of insanity".
The 2006 Act established a Mental Health (Criminal Law) Review Board, which reviews the cases of those held in the Central Mental hospital at six-monthly intervals. The applicant had undergone a number of such reviews.
The Act provides for temporary release on the decision of the clinical director of the hospital. If the conditions of such temporary release are breached, gardaí may arrest the detainee.
The applicant had benefited from care he received in the hospital. His wife and son wished to have him back in the family.
Following assessment by his doctors, he is on temporary release and lives with his family four nights a week, spending the remaining three in a low-security hostel on the grounds of the hospital. He is employed as a warehouse operative.
The central issues in the case are that the applicant says he no longer fulfils the criteria which authorise his continued detention in the hospital, as he is no longer suffering from a mental illness and does not require in-patient treatment.
The review board and the medical team treating him would be happy to release him, but with conditions attached. He would be happy to abide by such conditions.
However, the board is concerned that under the 2006 Act, there appears to be no provision for the enforcement of any conditions it might attach to the discharge of the applicant. Having sought counsel's opinion, it concluded that without such an enforcement regime it would have to grant him an unconditional discharge.
The clinical director of the hospital, Dr Harry Kennedy, and two other psychiatrists agreed that the conditions under which the applicant should be released included residing with his family, abstaining from excess drugs or alcohol, attending for regular appointments, complying with medication and accepting random visits, limiting his working week to 39 hours and not having sole responsibility for children.
Dr Kennedy did not consider him suitable for unconditional discharge.
The applicant said that under the legislation there was no power to detain him, as he did not suffer from a mental illness and was not in need of in-patient treatment, both of which are specified in the Act.
Counsel for the applicant argued that if he was released and broke the conditions of his release, section 14 of the Act could be invoked.
He also argued that permitting a person's detention in a psychiatric institution when the person was no longer suffering from a mental illness conflicted with the European Convention on Human Rights.
The imposition of enforceable conditions would conflict with the applicant's right to liberty. If this has been the intention of the Oireachtas, it would have stated it in the Act.
Counsel for the board argued that the board was entitled to refuse to discharge the applicant on the grounds that the conditions could not be imposed by it and could not be enforced. Once the applicant was released under section 13, there was no going back.
The original order would be spent. Section 13 limited its action to reviewing detention. The applicant could not be both detained and discharged.
Decision
After reviewing the legislation, Mr Justice Hanna pointed out that under section 13, dealing with the functions of the review board when a person came before it, the person could be further detained, discharged unconditionally or released, subject to conditions and supervision.
However, section 13 did not provide for any express sanction if the person failed to comply with conditions.
Under section 14, dealing with temporary release, a person could be deemed to be unlawfully at large if he or she exceeded the period for which they were released or if the person broke a condition of the temporary release.
The person could then be arrested by a garda or by the staff of the centre where he or she had been detained.
The applicant was benefiting from the temporary release scheme at present.
After examining the Laffoy judgment in Application of Gallagher (No 2) [1996], Mr Justice Hanna said Ms Justice Laffoy's approach must inform and direct interpretation of the Act of 2006. One must be careful, however, not to invade the realm of the legislator by interpreting legislation in such a way as would amount to rewriting it.
He said that it was clearly the intention of the Oireachtas that although conditions might well be imposed on a discharge order, no means were to be available to enforce these conditions.
While he had been invited to interpret the Act purposefully in order to infer some sort of enforcement regime into the Act, that would amount to legislating and would offend the principle of separation of powers.
This case differed from the case brought before the European Court of Human Rights, in that the applicant here was living and working under very different conditions, spending the majority of his time with his family.
The Act mandates the board to have regard to the interests of the patient and the general public.
The applicant has been afforded a significant measure of liberty, as a consequence of the operation of the Act. His current state does not offend against the European Convention on Human Rights. The full judgment is on www.courts.ie
Feichín McDonagh SC and Barry O'Donnell, instructed by St John solicitors, appeared for the applicant; Anthony Ashton SC and Ronan Kennedy appeared for the Criminal Law Review Board; Carmel Stewart and Felix McEnroy SC appeared for the Central Mental Hospital, and Timothy O'Leary SC and Conor Duignan appeared for the State.