FX v Clinical Director of the Central Mental Hospital and Another (No 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 08 July 2012
• Neutral Citation: [2012] IEHC 272
• Docket Number: [2012 No. 1258 SS]
• Court: High Court
• Date: 08 July 2012

[2012] IEHC 272

THE HIGH COURT

[No. 1258 SS/2012]

X (F) v Clinical Director Of Central Mental Hospital & Anor

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

F.X

APPLICANT

AND

CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS (No.2)

NOTICE PARTY

CRIMINAL LAW (INSANITY) ACT 2006 S4(5)(C)(I)

CONSTITUTION ART 40.4.2

TRIMBOLE, STATE v GOVERNOR OF MOUNTJOY PRISON 1985 ILRM 465 1985 IR 550 1985 3 747

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40

N v HSE 2006 4 IR 374 2006 IESC 60

H (J) v RUSSELL 2007 IEHC 7 2007 4 IR 242

DOYLE v DIRECTOR OF CENTRAL MENTAL HOSPITAL UNREP FINAY-GEOGHEGAN 20.3.2007 2007/16/ 3286 2007 IEHC 100

C S v CLINICAL DIRECTOR OF ST BRIGIDS HOSPITAL ARDEE CO LOUTH UNREP DUNNE 26.2.2009 2009/8/1712

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

KINSELLA v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 12.6.2011 2011/31/8437 2011 IEHC 235

DALY & DOHERTY PRINCIPLES OF IRISH EMPLOYMENT LAW 2010 2011 46 IRISH JURIST 235

CONSTITUTIONAL LAW

Detention

Lawfulness - Remedy - Immediate release - Stay -Habeas corpus - Mental health - Accused detained as unfit to plead, suffering from mental disorder and in need of in-patient care - Statutory requirements followed - Detention unlawful - Whether stay can be put on order for release - N v HSE [2006] IESC 60, [2006] 4 IR 374 applied; JH v Russell (Mental Health) [2007] IEHC 7, [2007] 4 IR 242 and Doyle v Central Mental Hospital [2007] IEHC 100, (Unrep, Finlay Geoghegan J, 20/3/2007) followed; A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 and Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, [2011] 2 ILRM 509 considered; SC v Jonathan Swift Clinic, St James's Hospital (Unrep, SC, 5/12/2008) distinguished - Constitution of Ireland 1937, Article 40.4.2 - Release directed but with stay (2012/1258SS - Hogan J - 8/7/2012) [2012] IEHC 272

X(F) v Central Mental Hospital

Facts The applicant had been detained in the Central Mental Hospital pursuant to the Criminal Law (Insanity) Act, 2006. Judgment had already been given by the court that the applicant's custody was unlawful. The issue that now fell to be decided was whether a stay could be placed upon an order for release so as to enable either the respondent or the notice party (DPP) to take steps to regularise the applicant's detention. The medical diagnosis was that the applicant suffered from chronic paranoid schizophrenia which was resistant to treatment and presented a serious threat to himself and others if released. The issue arose as to whether the court had a general discretion to stay the order of release so as to enable the authorities to take steps to regularise the legality of the applicant's detention.

Held by Hogan J in making the following order: If the applicant were to be released unconditionally, the clear and cogent medical evidence was that he would pose a real and immediate risk to himself. However result oriented decisions which could not be rationally supported by reference to earlier authority sapped the integrity of the judicial decision-making process. The court was prepared to adopt a flexible approach, exercise its discretion and order that the applicant be released from custody within a short period of time (2 days). This approach was in line with the decision in v. Russell [2007] IEHC 7, [2007] 41.R. 242. This further short delay would enable the authorities to take such steps so as to ensure date that the applicant's custody was thereafter a regular and lawful one.

Headnotes

1 1. This applicant is currently detained in the Central Mental Hospital pursuant to an order of the Central Criminal Court made on the 26 ^thMarch, 2012, pursuant to s.4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 ("the Act of 2006"). He now seeks his release pursuant to Article 40.4.2 of the Constitution and in a judgment delivered on 3 ^rd July, 2012, I held that for the reasons set out in detail in that judgment that the applicant's custody was unlawful. The issue which now arises is whether I can place a stay on any order for release so as to enable either the respondent or the notice party to take steps to regularise the applicant's detention.

2 2. The substantive application itself raises from tragic circumstances. The applicant was charged with a very serious criminal offence and he was found unfit to plead by Carney J. on 26 ^th March, 2012. As I noted in my first judgment, the medical diagnosis is that the applicant suffers from chronic paranoid schizophrenia which is resistant to treatment. The overwhelming evidence is that the applicant is seriously disturbed and that he presents a very serious threat to himself, identifiable individuals and to the general public were he to be released from custody.

3 3. As thus presented, the Court is confronted with two choices, neither of which at first blush are terribly appealing, at least judged by reference to the facts of this particular case. The traditional view, of course, was that the Court must immediately direct the release of the successful applicant, at least if fidelity to the language, structure and purpose of Article 40.4.2 is to be maintained. On this view, the Court must adopt a quasi-Olympian air of detachment from the consequences of its order: fiat justitia, ruat caelum. This was certainly the view expressed by Finlay C.J. in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, 568 where he stated that the existence of such a jurisdiction to place a stay "would be inconsistent with the Constitution."

4 4. Yet this view has its own limitations, not least in the present case. If the applicant were to be released unconditionally, the clear and cogent medical evidenceis that he would pose a real and immediate risk to himself, identifiable individuals and to society at large. One can put this in some perspective by noting that the applicant is possibly the most seriously disturbed individual currently detained in civil confinement in the State. In this context, one might have thought that the Constitution's objective of a "true social order" (as reflected in the Preamble), together with the State's express constitutional duty to protect the life and person of citizens (Article 40.3.2) might come into play at this juncture.

5 5. The alternative approach which is urged on me here by Mr. McEnroy S.C. for the Central Mental Hospital and by Mr. McDermott for the Director of Public Prosecutions also has its own distinct drawbacks, They contend that this Court has a general discretion to stay the order of release so as to enable the authorities to take steps to regularise the legality of the applicant's detention. This is a superficially attractive option which is certainly prompted in the present case by good intentions. But these good intentions might come with a price which, over time, could well be considerable.

6 6. To be blunt, the existence of such a general discretion, if unchecked, might over time serve to hollow out the core of the Article 40.4.2 remedy by converting it into a form of discretionary order. In due course, this discretion might be broadened further to the point whereby the courts tolerated the widespread illegal detention of persons with unpleasant and unappealing backgrounds simply because they were thought to pose some vague, general threat to public order. For a free society committed to the rule of law, the tolerance of a discretion of this kind might be the first step on a long path to perdition and the ultimate emasculation of the Constitution and the values that it stands for.

7 7. If, therefore, the courts did enjoy a discretion of this kind, it would have to be operated within confined parameters which reflected the essence of the protections afforded by Article 40.4.2. The first question to be considered, however, is whether the court is obliged in all circumstances to order the immediate release of an applicant who has been successful in the substantive Article 40 proceedings or whether the giving effect to that order can be stayed in some way.

Whether the courts enjoy a jurisdiction to stay the making of an order for release?

8 8. In the light of Trimbole, the accepted view was that the courts had no jurisdiction to stay the making of an Article 40.4.2 order. This view is also reflected in the judgment of Murray C.J. in N. v. Health Service Executive [2006] IESC 60, [2006] 4 I.R. 374, 470 (which was an Article 40 application in respect of the custody of an adoptive child) where he said that:-

"A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for release of the person concerned from the unlawful detention with no further order being necessary."

9 9. The Chief Justice added, however, that:

"In this case there are special circumstances, namely, the welfare of an infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this court pursuant to Article 40."

10 10. Drawing on the Article 40.3 case-law, the Chief Justice went on to say ( [2006] 4 I.R. 374, 471) that:

"In my view the court has jurisdiction, in the circumstances of a case such as this, involving a minor of a very tender age, to make ancillary or interimorders concerning the immediate custody of such [an] infant which are necessary to protect her rights and welfare...