Governor of X Prison v McD (P)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Baker
• Judgment Date: 31 March 2015
• Neutral Citation: [2015] IEHC 259
• Date: 31 March 2015

[2015] IEHC 259

THE HIGH COURT

[No. 2139 P/2015]

Governor of X Prison v McD (P)

BETWEEN

GOVERNOR OF X PRISON

PLAINTIFF

AND

P McD

DEFENDANT

Crime & Sentencing – Prison Rules 2007 – Right to die – Whether a person had capacity to enter into acts that would lead to his death

Facts: Following the hunger strike in prison by the defendant owing to denial of certain facilities to him, the applicant sought various declarations from the Court that the defendant had capacity to refuse food and medical intervention; that the action taken by the defendant was voluntary and that the plaintiff would not force feed the defendant. The plaintiff sough direction on how to approach the case of the defendant in case of emergency need and care that inevitably flowed from the conduct of the defendant.

Ms. Justice Baker made the declarations that the defendant's decision of refusal of medical and nutritional assistance was valid, that the defendant's decision would remain operative even if the defendant became incapacitated to make the decision and that the plaintiff was entitled to accede to the wishes of the defendant not to feed or provide medical help to him. The Court held that based on the medical evidence and opinions of the medical experts, the defendant having been explained the ultimate consequences of his decision being death made the informed choice of remain deprived from food and medical intervention. The Court observed that right to life carries within its ambit right to die with dignity and as such the defendant could continue his hunger strike according to his wishes. The Court held that the right of self-determination should prevail over State's constitutional mandate to protect the life and liberty of an individual. The Court was of the view that the defendant had the right to even refuse the advance future care engraved in the right of life.

1 1. At the outset of these proceedings before me I made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act, 2008 prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the applicant.

2 2. Fasting, or going without food, for the purposes of extracting justice or redressing a wrong has had a long history in Ireland and indeed it could be said to be a particularly Irish form of protest. It is found in early Irish law where it was called troscud, the particular protest being focused on the fact that to show that a person had refused you hospitality was to hold that person up to ridicule and disdain in society.

3 3. Mr. McD is conducting a hunger strike at X Prison not for any political or historic cause, and his complaint is purely personal, and relates to the conditions of his detention. This case concerns the question of whether his choice to so express his protest is one made with the full knowledge of the consequence, and whether his expressed wishes are to be respected, even should he fall into coma.

4 4. An application was brought by the Governor of X Prison for declaratory relief in respect of the defendant, a 45-year old man who is currently serving a 12-year sentence at the prison. Since or about the 8 ^th February, 2015, the defendant has been on a hunger strike at the prison as part of his protest against the conditions of his detention, full details of which I will outline below but which have resulted in his being voluntarily isolated from almost all human contact since 2012. The application first came before me on Wednesday 25 ^th March, 2015, and at that stage the affidavit evidence was that the applicant was of sound mind and capable of coming to a decision to refuse food, which he continued to do. Certain questions were raised by me in the course of the hearing and I will detail the consequence of that enquiry below. The matter was adjourned to Friday 27 ^th March, 2015, at which point it seemed that the defendant's physical state had deteriorated, and at that adjourned hearing counsel for the defendant indicated that they were concerned as to his capacity to understand and consent to the enormity of the decision which he had made and which he was continuing to implement. The defendant's counsel in particular raised the question of whether the court's inherent jurisdiction might require me to consider broader questions of law and fact, and that the defendant might in law be a vulnerable person, or in the alternative, a person in respect of whose right to life I ought to consider the option of requiring, or permitting, the prison Governor to commence a programme of artificial feeding. The matter first came on for hearing as an interlocutory motion but I directed a hearing of oral evidence and on Monday 30 ^th March, 2015 I heard oral evidence from the defendant himself and his personal comfort was facilitated by hearing that evidence at a place that would cause him the least distress.

Background facts

5 5. The defendant is a member of the Travelling community, whose family background and history has been characterised by extreme physical and sexual abuse; and he spent his childhood after the age of 10 or thereabouts in care in the UK. His family travelled between the UK and the USA, and he had no real connection with any Travelling community in Ireland.

6 6. He has a long history of alcohol and drug use, and he started taking so-called soft drugs when he was not yet a teenager. He was in a car accident as a child, as a result of which he lost his spleen, which is said to make him susceptible to infection. He had been diagnosed as suffering from a psychological condition, a borderline personality disorder, and he has a history of self-harm, which has continued into his prison life.

7 7. He has spent 30 years of his life in prison, and the prison sentence imposed on him on the 7 ^th December, 2011, was the first sentence imposed upon him in Ireland, and this is the first time he has spent any time in an Irish prison. His anticipated release date is December 2017, having regard to a period of time that he spent in remand in Cloverhill Prison in respect of the conviction for burglary, assault and a threat to kill an elderly person.

The defendant's conditions in X Prison

8 8. The defendant at his own wish has chosen not to mix or associate with other prisoners in X, as he fears that he is at risk from harm from other prisoners, primarily from groups of the Irish Travelling community, and he notes a particular feud between two Travelling families in the prison which he believes has posed a direct risk to his own personal safety. He said that since he arrived in X he has been subjected to name calling, verbal abuse, and also complains of discriminatory and anti-Traveller abuse from other prisoners and from prison staff. His main complaint and fear, however, has arisen from his concern that he is at risk from other Travellers in the prison.

9 9. He opted to serve his sentence under Rule 63 directions, which involves him living in a segregated cell, and effectively means that he is locked up for 23 hours every day. This 23-hour lock up has continued since he first arrived in X Prison in December, 2011. In the last eight months or thereabouts he has declined to take his one hour of allocated outdoor exercise, and his complaint with regard to the exercise options available to him is one of the two complaints which has lead to his hunger strike.

10 10. The defendant receives no family visits as all his extended family live in the UK, and he says on affidavit that he does not make or receive phone calls or letters to or from any family members. He does not mix with any prisoners, and he has no friends or companions or any personal or social support in the prison, apart from one nurse with whom he has established a rapport and whose support he has found helpful, and some prison officers, one of whom accompanied him to the hearing.

11 11. Two of his siblings and his mother all died in the last year and he says on affidavit that the fact that he could not go to their funerals was "very difficult to cope with". He expresses the result of his limited, social interaction as follows: "At times, my restricted regime is very difficult to cope with and I turn to self harm out of frustration."

The hunger strike

12 12. On the 8 ^th February, 2015, the defendant commenced a hunger strike. He said that at first he simply refused food, but that on the 20 ^th February, 2015, he informed prison staff that he was on hunger strike and this fact was officially recorded. He has taken fluids, initially tea and coffee as well as water, but he has now restricted himself to water as his failing physical state is not tolerating the stimulant effect of either tea or coffee.

13 13. His hunger strike is expressed by him as his protest against prison conditions. He had previously threatened a hunger strike in February 2011 when he was still in detention in Cloverhill Prison, and he conducted a so-called "dirty protest" in that prison in February 2011. This hunger strike is the first serious and lengthy protest in which Mr. McD has engaged and the inevitable consequence of this protest is that his death is fast becoming imminent.

14 14. Mr. McD himself made a formal complaint to the prison Governor on the standard compliant form, one on the 9 ^th February, 2015, and the other on the 10 ^th February, 2015. The first refers to a conversation he had with the Governor who asked him to commit his complaint to writing in the formal designated way. The second of these complaints contained written details Mr. McD's concerns.

15 15. His solicitor then communicated his complaint in a letter of the 13 ^th March, 2015. His complaints as so articulated, and confirmed in his own affidavit and oral evidence before me, are as follows:

16 16. First, he...