L v Kennedy and the Mental Health (Criminal law) Review Board

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 05 May 2010
• Neutral Citation: [2010] IEHC 195
• Court: High Court
• Date: 05 May 2010

[2010] IEHC 195

THE HIGH COURT

Record Number: No. 2081 SS/2009

L v Kennedy (Clinical Director of the Central Mental Hospital) & Mental Health (Criminal Law) Review Board

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN:

L

APPLICANT

AND

HARRY KENNEDY, CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

AND

MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD

NOTICE PARTY

TRIAL OF LUNATICS ACT 1883 S2

CRIMINAL LAW (INSANITY) ACT 2006 S20(2)

CRIMINAL LAW (INSANITY) ACT 2006 S5

B (J) v MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD & ORS UNREP HANNA 25.7.2008 2008/2/405 2008 IEHC 303

CRIMINAL LAW (INSANITY) ACT 2006 S11(2)

CRIMINAL LAW (INSANITY) ACT 2006 S1

CRIMINAL LAW (INSANITY) ACT 2006 S5(2)

CRIMINAL LAW (INSANITY) ACT 2006 S5(3)

CRIMINAL LAW (INSANITY) ACT 2006 S13

CRIMINAL LAW (INSANITY) ACT 2006 S13(8)

CRIMINAL LAW (INSANITY) ACT 2006 S11

CRIMINAL LAW (INSANITY) ACT 2006 S14

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

CONSTITUTION ART 40.4.2

CRIMINAL LAW (INSANITY) ACT 2006 S14(4)

CRIMINAL LAW (INSANITY) ACT 2006 S14(7)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

WINTERWERP v NETHERLANDS 1979-80 2 EHRR 387

JOHNSON v UNITED KINGDOM 1999 27 EHRR 296 40 BMLR 1

CRIMINAL LAW (INSANITY) ACT 2006 S20

MENTAL HEALTH ACT 1983 S73(4) (UK)

KOLANIS v UNITED KINGDOM 2006 42 EHRR 12 84 BMLR 102

CRIMINAL LAW

Detention

Lawfulness - Mental disorder - Powers of Review Board to detain - Conditional discharge from detention - Enforceability of conditions on release - Temporary release - Public interest - Discretion of Review Board - Whether detention permissible in circumstances where person no longer suffering from mental disorder - Whether right to release absolute where person no longer suffering from mental disorder - Whether lack of enforceability of conditions on discharge justified continued detention - Whether consideration of public interest conferred power of detention on Review Board - JB v Mental Health (Criminal Law) Review Board [2008] IEHC 303, (Unrep, Hanna J, 25/7/2008) and Kolanis v UK (2006) 42 EHRR followed - Mental Health Act 2001 (No 25) s 3 - Criminal Law (Insanity) Act 2006 (No 11) ss 1, 5, 11, 13 & 20(2) - Constitution of Ireland, 1937, Article 40.4.2 - European Convention on Human Rights, article 5(1) - Detention lawful (2009/2081SS - Hanna J - 5/5/2010) [2010] IEHC 195

L(A) v Kennedy

MENTAL HEALTH

Detention

Lawfulness - Right to review by Review Board - Meaning of "mental disorder" - Winterwerp principles - Requirement of objective grounds for detention - Margin of appreciation for decision of Review Board - Winterwerp v Netherlands (1979/1980) 2 EHRR 387, JB v Mental Health (Criminal Law) Review Board [2008] IEHC 303, (Unrep, Hanna J, 25/7/2008) and Kolanis v United Kingdom (2006) 42 EHRR followed - Mental Health Act 2001 (No 25) s 3 - Criminal Law (Insanity) Act 2006 (No 11) ss 1, 5, 11, 13 & 20(2) - Detention lawful (2009/2081SS - Peart J - 5/5/2010) [2010] IEHC 195

L(A) v Kennedy

Facts The applicant had been found guilty but insane in relation to the murder of his mother and as a result had been detained at the Central Mental Hospital (CMH). It was common case that owing to the treatment that the applicant had received that he was no longer suffering from a mental disorder as defined by the Mental Health Act, 2001. However clinicians had taken the view that the applicant was however suffering from a mental disorder as set out in the Criminal Law (Insanity Act), 2006 Act, which comprised of a different definition. Due to a lacuna in the legislation the Review Board had taken the view that conditions that might be imposed upon the applicant were he released could not be enforced. Thus if such conditions were to be breached there would be no power for the applicant to be returned to the CMH. The applicant submitted that since the medical opinion was now that he no longer suffered from a mental disorder as defined by the 2001 Act and that his being an in-patient at the CMH was not required, there was no lawful basis for his continued detention on foot of any order of the Review Board made under s. 13 (8) of the 2006 Act. It was contended that he must be discharged either conditionally or unconditionally in such circumstances.

Held by Peart J in refusing the application. It is clear that there had never been any capricious or arbitrary decision to simply detain the applicant for no apparent reason. The Review Board have been conscious of the improvement in the applicant's condition and that he no longer needed to be detained for treatment as such. They were at all times concerned not to discharge the applicant unconditionally, simply because of its view that any conditions which it would impose would have to be capable of supervision and enforcement. There can be no doubt that at all relevant times, the Board and those at the CMH have had the applicant's best interests at the heart of their decision-making. The Review Board had a wide discretion to make such order as it thought proper. The present application was concerned with whether the detention of the applicant was in accordance with the law and the Court held that it was.

Reporter: R.F.

1 Mr Justice Michael Peartdelivered on the 5th day of May 2010:

2 Following his arrest in the immediate aftermath of his mother's death the applicant was remanded from the District Court to Mountjoy Prison in December 1998, but some days later was transferred to the CMH where he remained as a patient until his trial and conviction. The clinical diagnosis at that time was that he was suffering from a drug-induced psychosis against a background of bi-polar affective disorder.

3 On the 7 ^th April 2000, the applicant was found "guilty but insane" by a jury at the Central Criminal Court, of the murder of his mother in 1998, following which, under the provisions of s. 2 of the Trial of Lunatics Act 1883 ("the 1883 Act"), then in force, he was committed by the trial judge to the Central Mental Hospital ("CMH") where he has been cared for and treated ever since.

4 On 12 ^th April 2006 the 1883 Act was repealed and replaced by the Criminal Law (Insanity) Act, 2006 ("the 2006 Act") which, inter alia, provides by s. 20 (2) thereof that the 2006 Act " shall apply to a person found guilty but insane and detained under section 2 of the Trial of Lunatics Act 1883, as if he or she were a person detained pursuant to an order of the court made under section 5 and accordingly, such person shall be entitled to the benefit of the provisions of this Act."

5 The applicant is therefore a person who is deemed to be detained pursuant to the provisions of s. 5 of the Act, and therefore entitled to the protections and procedural safeguards provided for by the 2006 Act and, in particular as far as the present case is concerned, the provisions related to periodical review of his medical condition, and the need or otherwise to continue to be detained at the CMH, and the powers of the Review Board in that regard..

Relevant statutory provisions:

6 Section 5 of the 2006 Act provides for the return by the jury of a verdict referred to as a "special verdict" to the effect that the accused person is "not guilty by reason of insanity", replacing the former verdict in such cases under the 1883 Act of "guilty but insane".

7 Before returning a "special verdict" the jury must be satisfied that the accused person was suffering at the time of the offence from a mental disorder, such that he/she ought not to be held responsible for the act alleged by reason of the fact that he or she (i) did not know the nature and quality of the act; (ii) did not know that what he or she was doing was wrong; and (iii) was unable to refrain from committing the act.

8 It is important to mention at this point that the definition of 'mental disorder' under the 2006 Act for the purposes of a special verdict by the jury differs from the definition of a 'mental disorder' under the Mental Health Act, 2001, and it is the latter which becomes relevant following any committal to the CMH and for the purposes of the reviews by the Mental Health (Criminal Law) Review Board "the Review Board") thereafter.

9 The treatment which the applicant has received over the years since he first became a patient at the CMH has resulted in a situation where the relevant medical opinion is that he is no longer suffering from a mental disorder, as defined by the 2001 Act such that his continued detention is necessary. However, a view has been taken that he should not be unconditionally discharged, but, rather, should be released but only on certain conditions related to his supervision. The relevant clinicians are of the view that even though he does not fulfil the criteria for mental disorder under the 2001 Act, he does suffer from a mental disorder for the purposes of the 2006 Act, a different definition.

10 Due to what is seen as a lacuna in the legislation, and in this regard reference has been made to the judgment of Hanna J. in JB v. The Mental Health (Criminal Law) Review Board and others, unreported, High Court, 25 ^th July 2008, the Review Board considers that such conditions as might be imposed upon any release of the applicant could not be enforced, resulting in a situation where if the applicant was to breach any condition so imposed, he could not be recalled to the CMH.

11 It has therefore been decided by the Review Board that he should continue to be detained, on the basis it would not be in his best interests or the interests of the public generally that he should be unconditionally discharged. In that regard, the Review Board has relied upon the provisions of s. 11 (2) of the 2006 Act as its authority...