S.M. v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 01 April 2021
• Neutral Citation: [2021] IECA 102
• Docket Number: [2021 No. 16]
• Court: Court of Appeal (Ireland)
• Date: 01 April 2021

Between

S.M.

Applicant

and

The Governor of Cloverhill Prison

Respondent

and

The Director of the Central Mental Hospital

Notice Party

[2021] IECA 102

The President

McCarthy J

Kennedy J

[2021 No. 16]

THE COURT OF APPEAL

CIVIL

Unlawful detention – Medical treatment – Article 40 of the Constitution – Applicant seeking an order pursuant to Article 40 of the Constitution – Whether this was an appropriate case for the invocation of Article 40

Facts: The applicant, on 13th August 2020, while a resident of a stepdown facility linked to St. Vincent’s Psychiatric Hospital, Fairview, on St. Lawrence Road in Clontarf, stabbed a fellow resident of the facility to death. Following the incident, the applicant made his way on foot to the nearby Clontarf Garda station where he reported what he had done. In due course, he was arrested, detained, charged and brought before the District Court where he was remanded in custody. Following his remand by the District Court to Cloverhill Prison on 14th August 2020, he was seen by a nurse on arrival at the prison and placed on the D2 wing, an area of the prison reserved for potentially vulnerable prisoners. On 19th November 2020, lawyers acting on behalf of the applicant sought an order, pursuant to Article 40 of the Constitution. The High Court (Hyland J), by way of a reserved judgment, declined the relief sought. From that refusal, the applicant appealed to the Court of Appeal. While the case was cast in the form of Article 40 proceedings, it was clear that the desired outcome was that the applicant would be transferred to the Central Mental Hospital (CMH) in Dundrum. Insofar as the applicant wished to be transferred to the CMH, that was a wish that was shared by the respondent, the Governor of Cloverhill Prison, and the notice party, the Director of the CMH. The difficulty was that the CMH was full to capacity and there was no bed available for the applicant. The applicant said that the proper application of the relevant legal principles to the facts would see an order under Article 40 being granted. He also said that this was a perfectly appropriate case for the invocation of Article 40, and indeed, that it was the only appropriate and available remedy.

Held by Birmingham P that he was in complete agreement with the High Court judge. He did not believe that the evidence in the case went anywhere near what would be required to justify the making of an order under Article 40. He noted that all were agreed that the applicant’s needs were best met, and indeed could only be met, in the context of an admission to the CMH; however, pending that, his immediate needs were being met in the D2 wing of Cloverhill Prison where he had access to mental health professionals and, where appropriate, medication could be and had been prescribed.

Birmingham P held that the appeal would be dismissed.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Birmingham P. delivered (via remote hearing) on the 1st day of April 2021

1 On the morning of 13th August 2020 at a stepdown facility linked to St. Vincent's Psychiatric Hospital, Fairview, on St. Lawrence Road in Clontarf, Mr. O, a resident of the facility, was stabbed to death. At least for the purposes of the present proceedings, it is not in dispute that the late Mr. O was stabbed by the applicant who was a fellow resident of the facility. Following the incident, the applicant made his way on foot to the nearby Clontarf Garda station where he reported what he had done. In due course, he was arrested, detained, charged and brought before the District Court where he was remanded in custody. Following his remand by the District Court to Cloverhill Prison on 14th August 2020, he was seen by a nurse on arrival at the prison and placed on the D2 wing, an area of the prison reserved for potentially vulnerable prisoners. He remains on that wing to this day. There, he is supported by the prison medical team and what is described as the ‘in-reach’ service provided by the Forensic Mental Health Services. He is seen regularly by mental health professionals, including consultant psychiatrists and specialist mental health nurses.

2 On 19th November 2020, lawyers acting on behalf of the applicant sought an order, pursuant to Article 40 of the Constitution. The High Court (Hyland J.), by way of a reserved judgment, declined the relief sought. From that refusal, the applicant has appealed to this Court. In the course of the appeal hearing, the point has been made on a number of occasions that the applicant was a reluctant litigant, and an even more reluctant appellant.

3 The proceedings are unusual, in that while the case is cast in the form of Article 40 proceedings, it is clear that the desired outcome is that the applicant would be transferred to the Central Mental Hospital (hereinafter “CMH”) in Dundrum. Reflecting this, the Director of the CMH has been named as a notice party, and indeed, he has participated fully in the proceedings, both before the High Court and before this Court.

4 Insofar as the applicant would wish to be transferred to the CMH, that is a wish that is shared by the respondent Governor of Cloverhill Prison and the Director of the CMH, the notice party. The difficulty is that the CMH is full to capacity and at present, there is no bed available for the applicant. This case, therefore, is what is sometimes described as a ‘resources case’, requiring consideration of the circumstances in which an otherwise lawful detention can be rendered unlawful by a failure to provide appropriate medical treatment so as to entitle the applicant to an order for his release under Article 40. In the High Court, counsel for the applicant raised the possibility of an order being made, but then being stayed for a period.

5 The sense I have is that there is little underlying disagreement between the parties as to the facts of this case, or indeed, between them as to the relevant legal principles. However, where there is fundamental disagreement is as to what the outcome is if the relevant legal principles are applied to the facts. The applicant says that the proper application of the principles to the facts will see an order under Article 40 being granted. He also says that this was a perfectly appropriate case for the invocation of Article 40, and indeed, that it is the only appropriate and available remedy.

6 While the facts are very fully set out in the course of what was a very careful and comprehensive judgment in the High Court, for ease of reference, I will recap them briefly.

Background Facts

7 The applicant is 25 years of age and is originally from County Wicklow. He studied electrical engineering at college. Of note is that he experienced some mental health issues while at secondary school and in college. In 2018, his difficulties worsened and he spent some time in a psychiatric hospital in Newcastle, County Wicklow. Following his discharge, he became homeless. Then, in June 2019, he was brought by Gardaí to St. Vincent's Psychiatric Hospital in Fairview. He spent some time there, both as an involuntary patient and, at a later stage, as a voluntary patient before being discharged to the stepdown facility in Clontarf.

8 Following his detention in Cloverhill Prison, the applicant has been seen on a number of occasions by Dr. Conor O'Neill, consultant forensic psychiatrist of the prison in-reach and court liaison service in Cloverhill.

9 By reference to the reports of Dr. O'Neill and of his colleague, Professor Harry Kennedy, Director of the CMH, Hyland J. summarised the situation as follows:

• • “that the applicant remains actively psychotic,

• • that he has been on the waiting list for the CMH for an extended period,

• • that he requires appropriate inpatient psychiatric care and treatment which cannot be provided at this time in a prison setting,

• • that he would benefit from treatment with antipsychotic medication and assessment with a neurologist to exclude an organic component to his presentation and

• • that the risk of him causing harm including fatal harm to others is of such immediacy and severity that he could not be appropriately managed in a community setting or inpatient setting of a level of security less than the...