Mentally ill murder accused may not be released immediately if challenge succeeds

It is accepted Central Mental Hospital does not have bed capacity, but court must answer consequences of finding man's detention unlawful under Article 40 of the Constitution, says counsel
Mentally ill murder accused may not be released immediately if challenge succeeds

The 103-bed CMH in Dundrum is the only institution for holding and treating severely mentally ill people in the criminal justice system. File picture:  Frank Miller

A mentally ill murder accused, who cannot be transferred from a remand prison to the Central Mental Hospital (CMH) because of a lack of beds, would not have to be released immediately if a legal challenge over his detention succeeds, the High Court heard.

While a challenge to the legality of detention usually results in a person being released, in this case the man involved could continue to be held in prison to see if that would allow him to be moved up the CMH waiting list, Michael O'Higgins, for the man, told the court today.

In the challenge to his detention, it is accepted the CMH does not have bed capacity, but the question the court has to answer is what are the consequences of finding his detention unlawful under Article 40 of the Constitution, counsel said.

Mr O'Higgins was opening the man's proceedings against the governor of Cloverhill Remand Prison and the director of the CMH, who opposed the application.

They say Article 40 proceedings are not the appropriate route for bringing such a challenge and they should be through a judicial-review challenge. The prison says he is getting the treatment he needs there from the CMH outreach team but accepts he should be transferred when a bed is available.

Ms Justice Niamh Hyland, following an application from Mr O'Higgins under the Civil Law (Miscellaneous Provisions) Act 2008 covering anonymity for certain persons in civil proceedings if they suffer from a medical condition, granted an order that he not be named or information given identifying him.

Mr O'Higgins said his client is suffering from homicidal thoughts in prison and it was not accepted, as claimed by the prison, that he was getting the treatment he needed.

The in-prison treatment included a medic visiting his cell twice a day with a trolley containing medication he won't accept and which, given his relationship in a prison, he was entitled to refuse, counsel said. It was not accepted that his immediate needs were being met.

His psychiatric condition includes that he has schizophrenia and is actively psychotic, counsel said. His condition remains such that he needs appropriate treatment which cannot be provided in a prison, counsel said.

He is not in a condition to be assessed for his fitness to plead, but a psychiatrist says he would be if he were put under the appropriate treatment regime in the CMH.

Mr O'Higgins said, as a matter of principle, there was a right to bring a legal challenge in a case like this. If, for instance, an Irish prison, which thankfully it is not the case, was racked with coronavirus and the authorities refused to release any prisoner though they were "dropping like flies", a prisoner could go to court and argue their right to life was being seriously compromised.

In that case, as in this one, it does not come down to an act of omission or commission by the prison but something which is outside its control, counsel said. If it affects the custody of a person in that some fundamental right is being denied, a court may take the view that it does impair the lawfulness of the detention, he said.

Mr O'Higgins disagreed with the defendants' claim that judicial review proceedings were the appropriate route for this challenge.

He said there would be no remedy in the event the court found against the State parties in a judicial review because it was well established the courts cannot direct the executive arm of the State to, for instance, build a bigger hospital or spend resources in a certain way.

The case resumes on Monday.

The 103-bed CMH in Dundrum, which is the only institution for holding and treating severely mentally ill people in the criminal justice system, is due to be replaced by a larger 170-capacity facility in Portrane in north Dublin.

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