High Court grants stay on release order to allow authorities to regularize unlawful detention of mentally unfit patient.

Neutral Citation [2012] IEHC 272

THE HIGH COURT

[2012 No. 1258 SS]

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

F.X.

APPLICANT

AND

CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS (No.2)

NOTICE PARTY

JUDGMENT of Mr. Justice Hogan delivered on the 8th day of July, 2012

1. This applicant is currently detained in the Central Mental Hospital pursuant to an order of the Central Criminal Court made on the

26th March, 2012, pursuant to s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 ("the Act of 2006"). He now seeks his release

pursuant to Article 40.4.2 of the Constitution and in a judgment delivered on 3rd July, 2012, I held that for the reasons set out in

detail in that judgment that the applicant's custody was unlawful. The issue which now arises is whether I can place a stay on any

order for release so as to enable either the respondent or the notice party to take steps to regularise the applicant's detention.

2. The substantive application itself raises from tragic circumstances. The applicant was charged with a very serious criminal offence

and he was found unfit to plead by Carney J. on 26th March, 2012. As I noted in my first judgment, the medical diagnosis is that the

applicant suffers from chronic paranoid schizophrenia which is resistant to treatment. The overwhelming evidence is that the applicant

is seriously disturbed and that he presents a very serious threat to himself, identifiable individuals and to the general public were he

to be released from custody.

3. As thus presented, the Court is confronted with two choices, neither of which at first blush are terribly appealing, at least judged

by reference to the facts of this particular case. The traditional view, of course, was that the Court must immediately direct the

release of the successful applicant, at least if fidelity to the language, structure and purpose of Article 40.4.2 is to be maintained. On

this view, the Court must adopt a quasi-Olympian air of detachment from the consequences of its order: fiat justitia, ruat caelum.

This was certainly the view expressed by Finlay C.J. in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, 568

where he stated that the existence of such a jurisdiction to place a stay "would be inconsistent with the Constitution."

4. Yet this view has its own limitations, not least in the present case. If the applicant were to be released unconditionally, the clear

and cogent medical evidence is that he would pose a real and immediate risk to himself, identifiable individuals and to society at large.

One can put this in some perspective by noting that the applicant is possibly the most seriously disturbed individual currently detained

in civil confinement in the State. In this context, one might have thought that the Constitution's objective of a "true social order" (as

reflected in the Preamble), together with the State's express constitutional duty to protect the life and person of citizens (Article

40.3.2) might come into play at this juncture.

5. The alternative approach which is urged on me here by Mr. McEnroy S.C. for the Central Mental Hospital and by Mr. McDermott for

the Director of Public Prosecutions also has its own distinct drawbacks, They contend that this Court has a general discretion to stay

the order of release so as to enable the authorities to take steps to regularise the legality of the applicant's detention. This is a

superficially attractive option which is certainly prompted in the present case by good intentions. But these good intentions might

come with a price which, over time, could well be considerable.

6. To be blunt, the existence of such a general discretion, if unchecked, might over time serve to hollow out the core of the Article

40.4.2 remedy by converting it into a form of discretionary order. In due course, this discretion might be broadened further to the

point whereby the courts tolerated the widespread illegal detention of persons with unpleasant and unappealing backgrounds simply

because they were thought to pose some vague, general threat to public order. For a free society committed to the rule of law, the

tolerance of a discretion of this kind might be the first step on a long path to perdition and the ultimate emasculation of the

Constitution and the values that it stands for.

7. If, therefore, the courts did enjoy a discretion of this kind, it would have to be operated within confined parameters which

reflected the essence of the protections afforded by Article 40.4.2. The first question to be considered, however, is whether the

court is obliged in all circumstances to order the immediate release of an applicant who has been successful in the substantive Article

40 proceedings or whether the giving effect to that order can be stayed in some way.

Whether the courts enjoy a jurisdiction to stay the making of an order for release?

8. In the light of Trimbole, the accepted view was that the courts had no jurisdiction to stay the making of an Article 40.4.2 order.

This view is also reflected in the judgment of Murray C.J. in N v. Health Service Executive [2006] IESC 60, [2006] 4 I.R. 374, 470

(which was an Article 40 application in respect of the custody of an adoptive child) where he said that:-

"A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for

release of the person concerned from the unlawful detention with no further order being necessary."

9. The Chief Justice added, however, that:

"In this case there are special circumstances, namely, the welfare of an infant of tender years, to be taken into account

when determining the manner in which effect may be given to the order of this court pursuant to Article 40."

10. Drawing on the Article 40.3 case-law, the Chief Justice went on to say ([2006] 4 I.R. 374, 471) that:

"In my view the court has jurisdiction, in the circumstances of a case such as this, involving a minor of a very tender age,

to make ancillary or interim orders concerning the immediate custody of such [an] infant which are necessary to protect

her rights and welfare pending effect being given to the substantive order of the court."

11. In his concurring judgment, Hardiman J. expressly agreed with this approach ([2006] 4 I.R. 374, 534-535):-

"I regard as wholly disingenuous the submission made on behalf of the respondents that because the proceedings were

brought under Article 40.4.2, the powers available to the Court were limited to the stark alternatives of refusing relief

altogether, or directing an immediate, unprepared for, transfer of custody. The very starkness of these alternatives, it

was argued, was an argument for refusing relief altogether.

I agree with the form of order proposed by the learned Chief Justice in this case. I am satisfied, for the reasons which he

gives, that there is ample power to make an order in that form. I have no doubt that the power of the Court is not

constrained in the extraordinary fashion contended for by the respondents. I am quite satisfied that the welfare of the

child, in the long term and in the short term, as well the rights and responsibilities of the parties to this litigation, require

that the order proposed should be made."

12. Some of this passages were analysed by Clarke J. in J.H. v. Russell [2007] IEHC 7, [2007] 41.R. 242, which was one of the first

Article 40 applications concerning a mental health patient decided in the aftermath of N. As Clarke J. observed ([2007] 4 I.R. 242,

263):-

"The underlying logic of the approach of the Supreme Court in both cases was that the normal rule (i.e., immediate

release) might not be appropriate in all circumstances involving persons whose detention was, at least in significant part,

designed for their own good. A similar situation arises in the case of involuntary patients."

13. As Clarke J. stressed, a significant consideration here was whether it was clear that the applicant was in need of appropriate

treatment or, indeed, whether the objective necessity for the continued detention of the patient was not established. In pursuance

of this jurisdiction, Clarke J. placed a short stay of approximately seven hours on the order for release.

14. The approach of Clarke J. in Re JH has been consistently followed in the interval. Thus, for example, in one of the first cases to

arise in the wake of JH, JD v. Director of the Central Mental Hospital [2007] IEHC 100, Finlay Geoghegan J., noting that the patient

was "seriously mentally ill" and that the medical evidence showed that the patient was "a risk to other people and, in particular, to

women", stayed the making of the release order until 4pm on the following day.

15. It is not in doubt but that this practice has been consistently followed by a line of both reserved judgments and ex tempore

decisions delivered by this Court in the interval. So much is not disputed by counsel for the applicant, Mr. Fitzgerald S.C. He submits

rather that this line of case-law has been overruled by an ex tempore decision of the Supreme Court, SC v. Clinical Director of the

Jonathan Swift Clinic, James Hospital, 5th December, 2008. Here Birmingham J. had found that the applicant was in unlawful detention

in the respondent institution. Following established practice, Birmingham J. then placed a stay on the order for a day so that the

respondents could take steps to ensure that the applicant was lawfully detained.

16. An appeal against the making of a stay was heard on the following day by the Supreme Court. In his approved ex tempore

judgment Hardiman J. noted that there was "no evidence or even suggestion that the applicant is a danger to herself or any other

person." He then continued:-

"We do not consider it necessary, in those circumstances, to decide whether or not there may be ever a stay on an order

for release from psychiatric detention. It is sufficient to say, firstly, that the Trimbole decision suggests strongly that

such release must be immediate and, secondly, that evidence which goes only as far as the medical evidence of which we

have been informed could not conceivably form the basis for a continuation of a detention admitted to be unlawful."

17. The Court then lifted the stay and released the applicant. This judgment calls for a number of observations.

18. First, Hardiman J. emphatically stated that the Court did not find it necessary to consider "whether or not there may ever be a

stay on the order for release from psychiatric detention." The Court, therefore, did not have to consider what was even by then a

formidable body of authority from the decision in N. onwards. Second, unlike the present case, the applicant in SC presented no risk

to herself or anyone else. This was a crucial consideration which serves to distinguish that case from, e.g., the decision of Finlay

Geoghegan J. in JD and, a fortiori, the present case. Third, the judgment in SC was delivered ex tempore by a three judge panel. It is

seems most unlikely that the Supreme Court had intended to depart sub silentio from the general authority of post-N High Court case-

law and still less from what had been said by a Supreme Court consisting of five judges in N

19. In the circumstances, and for these reasons, I do not think that SC bears the broader interpretation which Mr. Fitzgerald SC so

skilfully urged upon me. All that the Court decided was that in that particular case given its facts, it was not appropriate to continue

the stay.

20. There are, in any event, other contemporary developments which tend to support the approach in JH The scope, range and

effectiveness of the remedies available where an unconstitutionality has been established is one, of course, of the Constitution's

great strengths. Yet recent experience has shown that, paradoxically, the very fact that these remedies are so potentially powerfully

and effective itself contains one latent weakness. This was first hinted by Geoghegan J. in A. v. Governor of Arbour Hill Prison [2006]

4 I.R. 88 where he rejected an absolutist doctrine of pure retrospectivity in the aftermath of a finding of unconstitutionality, saying

that:-

"If such was the devastating effect of a declaration of unconstitutionality in all cases, it would fly in the face of common

sense, would be manifestly unjust and would be contrary to any good order in a civilised society."

21. This hints at the nature of the problem. It amounts to this: if a finding of unconstitutionality had these "devastating"

consequences for society in general and the legal system in particular which the courts found themselves unable to control, then this

would inevitably impact on the practical willingness of the courts to make such a finding of unconstitutionality. This would represent a

form of functional asymmetry which, absent a necessary flexibility in the manner in which these remedies are administered, might well

have the effect of dissuading the courts from making a finding of unconstitutionality in the first place.

22. Thus, for example, if a court faced with a claim that an applicant prisoner's constitutional rights were infringed by reason of

inhumane prison conditions could grant no remedy other than to release the prisoner, then this might have the effect in practice of

inhibiting the courts finding for the prisoner on the merits of such a claim. If, however, the relief available can include what amounts

to a suspensory declaration of invalidity by giving the authorities one final opportunity to remedy the problem, then the court clearly

has a freer hand: cf the reasoning in respect of this issue set out briefly in my own judgment in Kinsella v. Governor of Mountjoy

Prison [2011] IEHC 235.

23. A variant of this problem was also in view in N where, as we have already seen, the argument was that if an order was made

under Article 40.4.2, it must be immediate so that the adoptive child would be forthwith returned to the natural parents without

delay. Since such an immediate transfer was such an unappealing prospect, with potentially significant adverse consequences for the

welfare of the child, this in turn was advanced as an argument by counsel for the adoptive parents as to why in the first instance the

Supreme Court should not find for the natural parents.

24. The present case also provides an example of this dilemma. The immediate release of the applicant in the present case into the

general community within minutes of the delivery of the actual judgment might well have had disastrous consequences. If the Court

were faced with the stark binary choice of simply ordering the immediate release of the applicant on the one hand or refusing relief on

the other, then the judicial branch would be placed in an appalling dilemma. The temptation in those circumstances to opt for the

practical, safe and convenient solution- refusing the grant of relief- would be well nigh irresistible for all but the most detached judges

who were prepared to live with their consciences if disaster subsequently ensued. Yet judicial pragmatism of this kind often comes

with a heavy price. Result oriented decisions which cannot be rationally supported by reference to earlier authority and established

doctrine sap the integrity of the judicial decision-making process and undermine - often with serious consequences -public confidence

in the objectivity of that decision-making process.

25. By contrast, a flexible approach in respect of the provision of remedies for constitutional breaches not only permits the courts

fearlessly to examine the merits of the claim, but it also serves to promote an important dialogue between the various branches of

government which enables all three branches to best work in the public interest. In the context of an application such as the present

one, it enables the judicial branch to determine the legality of the detention, while allowing the executive branch a short opportunity

to address difficult problems arising from that judicial finding: cf again by analogy my own judgment in Kinsella and Dr. Carolan's

analysis of these issues, "The Relationship between Judicial Remedies and the Separation of Powers: Collaborative Constitutionalism

and the Suspensive Declaration of Invalidity" (2011) 46 Irish Jurist 235.

26. It follows, accordingly, that for these reasons I intend to follow the general approach articulated by Clarke J. in JH. It remains to

consider how and in what circumstances the discretion to play a stay on the order for release should be exercised.

In what circumstances should the discretion to place a stay on the order for release be exercised?

27. As Clarke J. noted in JH, the option of the suspensory order under Article 40.4.2 only arises in the context of persons detained for

their own good, of which involuntary patients are perhaps the most obvious category. To this may be added the comments of

Hardiman J. in SC to the effect that the question of placing a stay does not arise where the patient poses no threat to himself or

others. While not excluding any future development of this stay jurisdiction on an a priori basis, the question of the grant of a stay on

the making of an order under Article 40.4.2 would only seem to arise where these two conditions have been satisfied, as they are in

this case.

28. Of course, the discretion must be exercised in a fashion which respects the fundamental principle that there must be an order for

release within a short period of the making of that decision. In the present case, when I first delivered my own judgment on Tuesday,

3rd July, 2012, I indicated that I was prepared to grant a stay in line with the JH practice. In the aftermath of the delivery of the oral

judgment, Mr. Fitzgerald SC protested that this issue had not been fully argued and that I had erroneously assumed that it had been.

In the end, it was agreed by the consent of all parties that the matter would be put in for further argument on the question of a stay

in the afternoon of Friday, 6th July, 2012. Following the conclusion of that argument, I indicated that I would give judgment on

Sunday evening, 8th July at 7pm.

29. On the hearing on 6th July Mr. McDermott indicated that the Director proposed to have the matter re-listed before the Central

Criminal Court tomorrow, 9th July. I should make it clear that the Director is fully entitled to make that application and in making that

application no question of any endeavour to set my judgment at naught arises. Any such application will be entirely a matter for the

Central Criminal Court.

30. For his part, Mr. McEnroy SC, reserved the right of the Director of the Central Mental Hospital to apply to this Court (although

perhaps not necessarily to me) for an order under the inherent jurisdiction of the Court committing the applicant afresh to detention

in the Hospital. That, of course, is an entirely a matter for the Hospital and I express no view whatever in respect of this which will be

a matter for the judge who hears any such application.

Conclusions

31. In the light of the foregoing, I have decided that the applicant must be released from his present custody (i.e., the order of the

Central Criminal Court made pursuant to s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 on 26th March, 2012) at 5pm on

Tuesday, 10th July, 2012. This further short delay is designed, in line with JH, to enable the authorities to take such steps as they

think fit in the meantime to ensure in advance of that time and date that the applicant's custody is henceforth a regular and lawful

one.