DPP -v- B
Neutral citation (2011) IECC 1
High Court
Judgment was delivered on April 7th, 2011, by Mr Justice Garrett Sheehan
Judgment
The court concluded the defendant was still suffering from a mental illness and in need of inpatient care in a designated centre, the Central Mental Hospital. Mr Justice Sheehan stressed the purpose of the defendant’s detention was for clinical care or treatment, and said the review board must carry out its reviewing function in accordance with the law, with due regard to the interests of both the individual and the public.
Background
Mr Justice Sheehan had indicated when, in March, he ordered the defendant to be detained in the Central Mental Hospital, that he had grave concerns about the adequacy of the treatment he was receiving there over the previous 2½ years, and he said he would set these concerns out in his judgment.
The defendant had admitted during his trial in February 2011 that in August 2008 he had forced his way into a security lodge in an industrial estate in Dublin and, armed with a knife, had sexually assaulted the security guard there.
The injured party said that during the assault, the accused appeared to be talking to a window, a door and someone who was not there.
The injured party escaped and alerted two other security guards, who attempted to apprehend the defendant. He escaped in their vehicle, but crashed it and was arrested. Gardaí described him as initially very aggressive and agitated, and described his appearance and his behaviour as odd.
Following interviews with his sister and mother, it was established that he had been born in Poland of Romany ethnicity, had little formal education, had begun smoking cannabis at about 16 and the family had frequent changes of address between Poland, Germany, the Netherlands and Ireland.
Psychiatric evidence was given by psychiatrists attached to the Central Mental Hospital.
The defendant had been diagnosed with paranoid schizophrenia, and the consultant psychiatrist said he was seriously ill at the time of the offence. He said he was suffering from a mental disorder as defined in both the Criminal Law (Insanity) Act 2006 and the Mental Health Act 2001.
The psychiatrist, Dr O’Connell, said that if the jury found him not guilty by reasons of insanity, he needed inpatient care in a designated centre. The jury did come to this conclusion, and the court ordered a report from Dr Sally Linehan, his treating psychiatrist.
Mr Justice Sheehan said it was clear that if the court concluded the defendant was still suffering from a mental disorder, it was constrained significantly by the terms of the legislation. As there was only one designated centre, as referred to in the 2006 Act, the court had no choice in deciding the nature or format of inpatient care or treatment.
The court could only decide whether the defendant was in need of continuing inpatient care in the Central Mental Hospital. There was no provision in the Act for outpatient care.
In the course of his evidence, Dr O’Connell described the defendant’s resistance to the taking of one drug, Clozapine, and how it was overcome. This drug could cause a leukaemia-type reaction which was potentially fatal and the defendant did not want to take it, stating that his religion as a Jehovah’s Witness did not permit the necessary blood tests.
The opinion of an independent psychiatrist was sought and she agreed the defendant did not have the capacity to give valid and informed consent. Following extensive persuasive work by the defendant’s social worker, mother and sister, he agreed to the blood tests and to take the drug.
Other side-effects of the drug included weight gain, constipation and indigestion, and effects on the heart. There was an acknowledged risk of high blood sugar which could lead to diabetes. However, Dr Linehan said she considered he had made progress while on the drug, although he continued to experience negative symptoms of schizophrenia, including social withdrawal.
Mr Justice Sheehan said the consultant forensic psychiatrist did not appear to have fully explored to what extent the negative symptoms may have been the result of the medication.
She had told the court she had seen him 55 times, on each occasion for about 15 minutes. “Unfortunately, what is clear from Dr Linehan’s evidence is that she does not see it as part of her function in this particular case to attempt to enter into a meaningful therapeutic relationship with the defendant,” the judge said.
All this gave rise to a concern as to whether the Central Mental Hospital was the appropriate environment for the defendant to achieve rehabilitation.
The emphasis on anti-psychotic medication, with the obvious detrimental effects on his physical health, the failure to enter into a meaningful therapeutic relationship and the apparent lack of real interest in the sources of his illness, were all causes for concern, as was the manner in which his initial refusal of Clozapine was dealt with.
Decision
Mr Justice Sheehan said there was a huge discrepancy in the protection afforded to patients detained pursuant to the 2006 Act and those admitted pursuant to the 2001 Act. There was no requirement for the “best interests of the patient” to be at the forefront of the court’s mind in making an order under the 2006 Act. Under the 2006 Act, when a person was found not guilty by reason of insanity, this was defined under the 2001 Act, meaning he or she suffered from a mental disorder in the civil law sense. Yet such a person did not have the same rights as a person detained under the 2001 Act, which defined a mental disorder.
The 2001 Act permitted a person to be detained in any “approved centre”, while the 2006 Act required a person to be detained in a “designated centre”, of which the only one was the Central Mental Hospital. It was therefore not possible for the court to consider whether it was adequate, appropriate or suitable for this particular defendant.
He concluded that the defendant did suffer from a mental disorder and required inpatient care in a designated centre, and therefore in the Central Mental Hospital, but stressed that this was for the purpose of clinical care or treatment. He said the review board established under the 2006 Act must carry out its reviewing function with due regard to the interests of both the individual detained and the public.
The full judgment is on courts.ie
Paddy Gageby SC and Tom Neville BL, instructed by Cahir O’Higgins, for the applicant; Caroline Biggs SC and Elva Duffy BL, instructed by the Chief Prosecution Solicitor, for the DPP