B. -v- Mental Health (Criminal Law) Review Board & Ors, [2008] IEHC 303 (2008)

Docket Number:2007 1517 JR
Party Name:B., Mental Health (Criminal Law) Review Board & Ors
Judge:Hanna J.
 
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THE HIGH COURTJUDICIAL REVIEW2007 No. 1517 J.R.BETWEENJ.B.APPLICANTANDTHE MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD,THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM,IRELAND AND THE ATTORNEY GENERALRESPONDENTSANDTHE CENTRAL MENTAL HOSPITALNOTICE PARTYJudgment of Mr. Justice Hanna delivered the 25th day of July, 2008.By order dated the 19th November, 2007, the applicant in this case was given leave to apply for judicial review. The applicant was permitted to seek a number of reliefs:(i) A declaration that in light of the factual determination contained within the "Report of Mental Health (Criminal Law) Review Board, Second Hearing - 1st June, 2007", the applicant is entitled to be discharged subject to such conditions as may be deemed appropriate by the Mental Health (Criminal Law) Review Board in accordance with s. 13(8) of the Criminal Law (Insanity) Act 2006, as amended by s. 197 of the Criminal Justice Act 2006, (hereinafter referred to as "the Act of 2006").(ii) A declaration that insofar as the Act of 2006 fails to state expressly the manner in which such conditions as may be imposed by the first respondent pursuant to s. 13(8) of the Act of 2006 should be enforced, the Central Mental Hospital is obliged to develop a protocol in that regard.(iii) An order of mandamus directed towards the first respondent compelling it to make an order authorising the conditional discharge of the applicant from the custody of the Central Mental Hospital, subject to such conditions as may be considered appropriate in accordance with the provisions of s. 13(8) of the Act of 2006.(iv) A declaration that the failure of the first respondent to make an order discharging the applicant from the custody of the Central Mental Hospital, subject to such conditions as may be considered appropriate and in accordance with s. 13(8) of the Act of 2006 is ultra vires the provisions of the Act of 2006.(v) Further and in the alternative, and without prejudice to the foregoing, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 13 of the Act of 2006, insofar as it may require a person in the circumstances of the applicant to be refused a conditional discharge and thereby to be deprived of his liberty, is incompatible with the State's obligations pursuant to Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.(vi) Further and in the alternative, and without prejudice to the foregoing, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 12(8) and s. 13 of the Act of 2006, insofar as it fails to provide the applicant with a public hearing by the first named respondent, or a full, public and proper appeal from the first named respondent's decision is incompatible with the State's obligations pursuant to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.(vii) Such further or other order as this Honourable Court may consider appropriate.(viii) An Order providing for the costs of and incidental to these proceedings.At the hearing of these proceedings reliefs (ii), (vi) were abandoned. The main focus of the applicant's case related to reliefs (i), (iv). Relief (v) in would come into play if the applicant failed in respect of the earlier reliefs.Factual BackgroundThere is no dispute as to the facts in this case which has its origins in tragic happenings on the 6th July, 2000. On that date the applicant killed his five year old daughter. At the time he was suffering from severe mental illness. He contemplated taking his own life. He was originally detained at the Central Mental Hospital on the 14th July, 2000. On the 31st January, 2002, a jury found him guilty but insane in the Central Criminal Court and the trial judge (Carney J.) ordered the applicant's detention at the Central Mental Hospital in Dundrum pursuant to s. 2 of the Trial of Lunatics Act 1883 [46 & 47 Vict., c. 38]. "…until the pleasure of [the Government] shall be known". The applicant has since been detained at the Central Mental Hospital in Dundrum, Dublin. By virtue of s. 20(2) of the Act of 2006 the provisions of that Act apply to the applicant. The relevant finding by a jury now is "not guilty by reason of insanity".The first named respondent, the Mental Health (Criminal Law) Review Board (hereinafter referred to as "the Board" or "the Review Board"), whose statutory background I will shortly set out, was established by the Act of 2006, to carry out the function previously exercised by the Executive in relation to deciding whether to release or not from detention persons found not guilty by reason of insanity. The function of the Review Board is to conduct reviews of persons held in "designated centres" who are the subject of the Act of 2006. The applicant has, to date, been subject to four such reviews, the most recent being on the 15th May, 2008. The decision of the Review Board sought to be impugned in these proceedings was consequential to a review carried out on the 1st June, 2007.The applicant did well and appears to have responded in a very real way to the care and treatment afforded him in the Central Mental Hospital. A moving feature of this tragic case is that his family wish to have him back and he wishes to be back with them. He has remaining a wife and son. As matters stand, it appears that the applicant is well. He is on temporary release and resides with his family four nights each week. On the remaining three nights he returns to the hostel on the grounds of the Central Mental Hospital which is the least secure area of that establishment. In fact, in many respects he has returned to the bosom of his family. He also is employed as warehouse operative as he was prior to the sad events which led to his detention in the Central Mental Hospital.The central issues in the case, in a nutshell, are as follows. The applicant says he no longer fulfils the criteria which authorise his continued detention in the hospital. He is no longer suffering from mental illness and does not require in-patient treatment. The Review Board and the medical team treating him would be happy to discharge the applicant but wish to do with conditions attached. After some protracted negotiation (no one faults the applicant or his solicitor for fighting his corner) the applicant is happy to abide by the conditions proposed. However, the Board was concerned about the fact that under the Act of 2006 there appeared to be no provision for the enforcement of any conditions it might attach to the discharge of the applicant. The Board sought counsel's opinion on this and are concerned that releasing the applicant in the absence of a suitable enforcement regime with regard to the conditions would amount to an unconditional discharge of the applicant. The Board fears that a conditional discharge as provided for in the Act of 2006 is, in effect, unconditional. The text of the Board's Report of the 1st June, 2007 is set out hereunder."Re: J.B.The patient continues to work full time four days a week and reside at home for the weekend. He shows no evidence of a mood disorder or psychosis. He does not currently suffer from a mental disorder.At the time of the last review, the Board considered discharging the patient subject to certain conditions which were considered to be essential to his discharge. Since that time, the Board has received legal advice that, while it may impose certain types of conditions on a discharge, neither the Board nor the Central Mental Hospital has any power to enforce such conditions. The Board appreciates that the patient has agreed to and undertaken to comply with these conditions, but it is not believed that the patient should be granted what would amount to an unconditional discharge. This is particularly so as the Board notes that his Consultant Psychiatrist has some concerns in relation to anger management and believes that it might be beneficial for the patient to attend an Anger Management Course.The present situation has been in being for some two years without any difficulty. The obvious next step would be that the patient should reside at home permanently and the Board would support this step if it were possible to impose enforceable conditions. The Board would hope that, at some time in the foreseeable future, a system may be put in place to enforce conditions imposed by the Board on his discharge, but while the Board would like to see the patient living permanently at home, it is not prepared to grant a discharge on conditions which cannot be enforced.The Board would like to add that, if the Clinical Director chose to exercise his powers under Section 14 of the Act, and grant a Temporary Release on conditions acceptable to the patient, the Board would be supportive of such a move. In any event, if it becomes possible to enforce conditions of a discharge, the Board would be happy to conduct a further review at short notice."In an affidavit sworn by Professor Harry Kennedy, the Clinical Director of the Central Mental Hospital, he says that he, and two other psychiatrists, Dr. Wright and her predecessor, Dr. Duffy, all agree that the following conditions should be attached to any conditional discharge of the applicant.(a) That he resides with his family at their home address.(b) That he abstains from excess alcohol and illicit drugs.(c) That he comply with random drugs tests and/or breathalyser tests.(d) That he attend for regular review appointments and case conferences arranged by members of his treating mental health team.(e) That he inform his treating mental team in the event that he experiences symptoms of mental illness.(f) That he complies with medication as prescribed.(g) That he accepts home visits and telephone contact from members of the treating mental health team.(h) That he co-operates with and permits members of the treating mental health team in contacting immediate relatives, employers and other...

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