Supreme Court dismisses appeal against indefinite detention of mentally ill murder suspect under 1995 order.

THE SUPREME COURT

Appeal No. 426/2012

Denham C.J.

Murray J.

MacMenamin J.

In the matter of an inquiry pursuant to Article 40

of the Constitution of Ireland, 1937

Between/

C.D.

Applicant/Appellant

and

Clinical Director of the Central Mental Hospital

Respondent/Respondent

and

Minister for Justice and Equality

Notice Party

Judgment delivered on the 6th day of February, 2013 by Denham C.J.

1. This is an appeal by C.D., the applicant/appellant, referred to as “the appellant”, from the order and judgment of the High Court

(Feeney J.) made on the 29th August, 2012, and perfected on the 30th August, 2012.

2. On the 2nd May, 1995 the appellant was found guilty of murder, but insane. It was ordered on the 2nd May, 1995, that she be

detained in the Central Mental Hospital, Dundrum, until the pleasure of the Government of Ireland be known.

3. The appellant was released from the Central Mental Hospital initially on a number of occasions for short lengths of time, and in 2000

she was released for a longer time, without the period of time being specified.

4. The appellant returned to the Central Mental Hospital on the 7th August, 2012. She did so at the request of her Consultant

Psychiatrist, Dr. Angela Newman. When she returned she was examined and given written notice that she no longer fulfilled the

conditions for temporary release.

5. The appellant has had schizophrenia, since at least, 1992.

The High Court

6. The High Court found that when the appellant was examined in recent times she was suffering from an acute psychotic relapse.

The expert opinion of a number of psychiatrists was that the relapse dates back a number of months to June, 2012, and that while

her condition is not constant, any apparent amelioration of the symptoms since June, 2012, is identified by the expert consultants as

being partial, inconsistent, and not sustained.

7. The High Court held:-

“The medical reports and indeed the oral evidence which I heard and which is uncontested and undisputed evidence

indicates that the content of the applicant’s delusions at this point in time during the present period of illness manifest

themselves in the same form as the delusions at the time of the unlawful killing in 1994. It is also the case that [the

appellant] has had problems concerning the devil and incorporating people around her into her delusions. She has engaged

in self-harm behaviour based upon what are identified as delusional beliefs. The evidence is clear and there is no contest

that she is currently suffering from a mental disorder as defined in the Mental Health Act 2001, and in the Criminal Law

(Insanity) Act 2006; there being a slight difference between the definitions in those two Acts, but the oral evidence was

that her current condition is such that she would come within the definition of either or both of those Acts.

The reason for that is that she is suffering from schizophrenia and because of that illness there is in the expert view of

the doctors a considerable and serious likelihood of [the appellant] causing immediate and serious harm to herself and

other persons. It is of some significance that the expert medical view is also that because of the illness in its current

manifestation, [the appellant’s] judgment is so impaired that failure to admit her to an approved centre would be likely to

lead to a serious deterioration in her condition and would prevent the administration of appropriate treatment and

detention and treatment of [the appellant] is likely to benefit or alleviate her condition to a material extent.

This is borne out by past history and very straightforward evidence was given that [the appellant] during the periods

between the outbreaks of her acute illness is a person who would be entirely different from what she is during the acute

illness and a person who would be suitable for residing and living in the community and any approach to the law and the

interpretation of the law should take into account a sufficient flexibility and understanding to provide for that situation.”

8. The relevant facts were found by the High Court. On the 8th August, 2012, Professor Kennedy, the Clinical Director of the Central

Mental Hospital, signed a document, following an examination on the 7th August, 2012. The document was given to the appellant and

signed by her, and in that she was informed that she was being returned to the Central Mental Hospital on the 7th August, 2012, that

Professor Kennedy, after assessment, was of the view that she was suffering from a mental disorder as defined in the Mental Health

Act 2001, referred to as “the Act of 2001”, and in the Criminal Law (Insanity) Act 2006, referred to as “the Act of 2006”. Professor

Kennedy was of the view that she was in urgent need of admission to the hospital for the purpose of obtaining special treatment that

could not be obtained in another approved centre, having regard to her welfare and to the safety of the public. Professor Kennedy

was no longer of the opinion that the appellant was not dangerous to herself and others, as provided for in s. 3 of the Criminal Justice

Act, 1960, and that she was suffering from a mental disorder within the meaning of the Act of 2001 and that she was in need of

inpatient care and treatment in the Central Mental Hospital. Since that date the appellant has been in the Central Mental Hospital.

The oral evidence before the High Court indicated that there was no significant alteration to the prognosis.

9. The appellant, who remains detained in the Central Mental Hospital, was in the High Court during the hearing of her application. The

High Court expressed concern at her presence.

10. The background facts include the following. On the 28th September, 2000, the appellant was informed that she was being

temporarily released. She was given a document of that date headed “Criminal Justice Act, 1960, Temporary Release from the Central

Mental Hospital, Dundrum (Unaccompanied).” I shall return to this document later in the judgment. The document did not contain any

reference to any specific period of release. It was submitted on behalf of the appellant that that defect had the consequence that

the release which occurred amounted to a permanent release.

11. There was also before the High Court a document under the Criminal Law (Insanity) Act, 2006, an admission order, which was

signed by Dr. O’Neill on the 7th August, 2012, who was the admitting doctor. She gave the opinion that the appellant was suffering

from an acute relapse of schizophrenia, and that she was required to be an inpatient for treatment.

12. The High Court held:-

“It is quite clear based upon the diagnosis and the clear medical evidence which was before the Court that the obligation

to be of good behaviour is one that could not be abided by [the appellant] in the current state and condition in which she

finds herself. That is not a criticism, but is merely an acknowledgement in relation to the inevitable consequences of the

clear diagnosis.”

13. The High Court held that the doctors had found that a stage had been reached when what was required was the immediate

placement of the appellant in the Central Mental Hospital for her own protection, and for the protection of others, and to enable her

to be treated.

14. An inquiry was sought by the appellant under Article 40, and it was claimed that she was unlawfully detained in the Central Mental

Hospital.

15. The High Court conducted an inquiry under Article 40 of the Constitution

Issue

16. The central issue before the High Court, and this Court, was the submission on behalf of the appellant that the release of the

appellant in September, 2000 was a permanent release and that she should be discharged from her detention under the order of the

Central Criminal Court. It was submitted on behalf of the appellant that the purported temporary release under the Criminal Justice

Act, 1960 was not effective because it must be for a specified period, and, in the absence of a specified period, the release could be

deemed to be a final release.

17. The High Court did not accept the argument made on behalf of the appellant, for a number of reasons, as follows:-

“The Court is not satisfied that a so-called temporary release of what are defined in the Act as ‘criminal lunatics’ under

section 3 of the 1960 Act must be for a specified period. Section 3 of that Act envisages that a release consented to by

the Minister may be given either for a particular release, section 3(3)(a) or from time to time during a specified period of

time. The section permits of a release other than just for a specified period of time.

(b) If I am wrong in relation to that then the Minister erred in 2000 in failing to provide for a specified period in the

release. It does not follow that the release then becomes a permanent release. The Order might be quashed, but a

purported temporary release and there is no doubt that the intention and decision was to grant a temporary release and

the documentation makes that manifest, that the purported temporary release if defective does not cause an intended

temporary release to become a permanent release. The Government has never determined that it is its pleasure to provide

for the permanent release of the applicant and that is the basis upon which the Court Order would cease to be effective.

An ineffective temporary release cannot amount to a decision for a permanent release.

(c) Even if the order of the 28th September 2000 was defective, the applicant has been the subject of subsequent

temporary releases which have had a specified date and in those circumstances the Order of the 28th September 2000 is

no longer of any application or relevance.

(d) Further, if there is no effective temporary release in existence and if the Government has not so directed, the

applicant has returned on a voluntary basis to the Central Mental Hospital and is detained there on foot of the original

Court Order, there being no order for either a permanent release, or no decision for a permanent release which could

activate the entitlement under the Court Order, not is there in existence a temporary release. There is therefore in the

present situation a position where the original Court Order of 1995 remains effective.

(e) There never was a permanent release, the applicant signed and understood and all the documentation is

demonstrative of the fact that the release in 2000 was intended to be a temporary release. A temporary release is a

privilege and the applicant has no right to such release. It is treated in the light of it being in circumstances where the

applicant is and has been in the past unwell and must be regarded in a manner that takes as much account as possible to

provide her with as much freedom consistent with her health and the safety of the public. It is the provision of temporary

release which allows for that in circumstances where the type of illness from which she is suffering is one which is capable

of relapse and when there is such relapse and there is a risk absent the capacity to provide for temporary release then

the position would be against the interests of the applicant

Temporary releases are acts which are administrative in nature. If there is a defect in the administration of such an act it

cannot result in a non-intended administrative decision becoming an alternative and different administrative decision.

(f) There is in existence a process by which the applicant complainant can be reviewed, indeed it is in place for next

month, which will consider if she is in a fit condition to be considered for release. That is under the existing legislation and

that process provides sufficient safeguards for the applicants both legally and procedurally. The Court is cognisant that

under our law a person found guilty by reason of insanity can only be detained for so long as the court is satisfied that

that person’s mental condition persists in a form and to the extent that the detention in an appropriate institution is

necessary for the protection of himself and others. That was clearly pointed out by Chief Justice Finlay in The People

(DPP) v. O’Mahony in the 1986 Irish Law Reports monthly. See page 249 Finlay C.J.

A person who is detained is in the view of this country and in the view of our law, not a criminal, nor has that person

been convicted of a crime. It is against that background that one comes to look at the facts which are before the Court

and when one looks to consider the provision of section 3 of the 1960 Act, which are different from section 2 of that Act

which relates to persons who have been convicted and sentenced either to a determined period or indeed to an undefined

period such as life. Section 3 deals with a separate category of persons, they are persons who have not been convicted

of a crime. It is also the case that if a person who is detained under the legislation as this applicant is seeks to secure

release from their detention that person may apply to the executive. It is then for the executive to determine whether or

not to release. In this instance it is clear and there is on the documentation before me no doubt but that the executive

who at its pleasure the applicant was ordered to be detained in the hospital has never expressed an intention for a

permanent release. To treat that defective order as a decision for permanent release is for this Court to be asked to do

something which it is not permitted to do so.

For the reasons that I have given in this judgment I am satisfied that the application for Article 40 relief should be refused

and that the applicant is lawfully in the care of the respondent pursuant to the 1883 Act as amended by the 2006 Act.”

Notice of Appeal

18. A notice of appeal was filed on behalf of the appellant which contained 25 grounds of appeal.

Submissions

19. Written and oral submissions were made to the Court on behalf of the appellant and the respondent.

Certificate

20. The formal certificate filed on behalf of the respondent in response to the habeas corpus inquiry certified that the appellant was

lawfully in the care of the respondent pursuant to s. 2 of the Trial of Lunatics Act, 1883, as amended by s. 20(2) of the Criminal Law

(Insanity) Act, 2006, and the original order was attached. That order was the order of the Central Criminal Court made on the 2nd

May, 1995, recording that the appellant had been tried before Geoghegan J. and found “Guilty but insane”. The order of the court

was:-

“[The appellant] to be detained in the Central Mental Hospital Dundrum, until the pleasure of the Government of Ireland be

known”.

The warrant was directed to the Director of the Central Mental Hospital, Dundrum, who was ordered to “Receive into your custody”

the body of the appellant found to be guilty but insane at the Central Criminal Court and to cause such person to abide by the order

as set out above.

21. Affidavits were filed on behalf of the respondent describing the past history of the appellant, who suffers from schizophrenia, and

the steps which have been taken previously, and subsequently.

22. I do not consider it necessary to set out in detail the medical history, or such documents as were before the Court, as to

previous temporary releases.

23. From the affidavits, where extensive detail is set out, it is clear that the health of the appellant relapsed in June, July and August,

2012, when some serious events took place. The facts were set out fully in the ex tempore judgment of Feeney J. The appellant

suffered an acute psychotic relapse in June, July and August, 2012. The uncontested evidence indicated that the contents of the

appellant’s delusions during the present illness manifested themselves in the same form as the delusions at the time of her unlawful

killing in 1994. The appellant was also engaging in self harm. The expert opinion of the doctors was that there was a considerable and

serious likelihood of the appellant causing serious harm to herself and other persons.

24. As referred to previously, on the 8th August, 2012, Professor Kennedy signed a document, following an examination which had

been carried out on the 7th August, 2012, and the appellant was informed that she was being returned to the Central Mental Hospital

on the 7th August, 2012, as Professor Kennedy was of the opinion that she was suffering from a mental disorder as defined in the Act

of 2001 and the Act of 2006. He was of the opinion that she was in need of urgent treatment that could not be obtained elsewhere,

having regard to her welfare, and the safety of the public. As Clinical Director

“he was no longer of the opinion that [the appellant] was not dangerous to yourself or others”

as provided in s. 3 of the Criminal Justice Act, 1960.

Decision

25. I would affirm the judgment and order of the High Court.

26. On the 2nd May, 1995, the Central Criminal Court ordered that the appellant, who had been tried for the offence of murder, and

found guilty but insane, be detained in the Central Mental Hospital “until the pleasure of the Government of Ireland be known”. The

order remains extant.

27. The key issues raised by counsel for the appellant were:- (i) whether the release in 2000 was a full release; and, (ii) even if the

appellant was considered to be on temporary release, she could only be brought back from temporary release if she breached a

condition, and it was submitted, that she had not breached any condition. The appellant does not raise any issue concerning the

lawfulness, as such, of the granting of a temporary release, or, as the appellant argues, the purported temporary release, but rather

challenges the form and terms upon which the release was made pursuant to the Act of 1960. In any event, as the learned trial judge

indicated, even if the power to grant temporary release could be treated as unlawful and quashed for any reason, the consequence

would be the continued detention of the appellant in the Central Mental Hospital pursuant to the order of the Central Criminal Court

ordering her detention there. That, in the event, is her current status as appears from the conclusions in this judgment.

28. Under s. 3(2) of the Criminal Justice Act, 1960, it is provided that:-

“A criminal lunatic who, in the opinion of the person in charge, is not dangerous to himself, or to others may, with the

consent of the Minister, be released temporarily by the person in charge subject to such conditions (if any) as he may,

with the consent of the Minister, impose”.

[Emphasis added]

29. The primary issue raised on behalf of the appellant was her temporary release in 2000. The document from 2000 states:-

“CRIMINAL JUSTICE ACT 1960

Temporary Release from the Central Mental Hospital, Dundrum

(UNACCOMPANIED)

This is to inform you that you [the appellant] are being released temporarily from the Central Mental Hospital, Dundrum,

from time to time and that your release is subject to the following conditions with which you are obliged to comply during

the period of your release.

1. To keep the peace and be of good behaviour during each period of your release;

2. To be of sober habits during each period of your release;

3. Neither to publish nor cause to be published any matter by means of newspaper or any other publishing medium

nor to engage in public controversy;

4. Neither to bring out nor bring in any material from or for any other patient in the hospital without the permission

of the Resident Physician and Governor;

5. Not to discuss with any outsider the affairs of any patient or of the hospital;

6. To be back in the hospital at or before the time appointed in connection with each period of release.”

It is signed by the resident physician and governor. It is also signed by the appellant, acknowledging that she is aware of the terms

and conditions of her temporary release, stated above, which had been explained to her, and of which she received a copy.

30. Attached to the above form there was a document entitled “Department of Justice, Equality and Law Reform, Temporary Release

Conditions: Re [the appellant]”. The terms and conditions included her transfer to another hospital, where she would be a voluntary

patient.

31. It is clear from the information and submissions before the Court that there were other temporary releases granted to the

appellant at later dates also.

32. Temporary release of a person, such as the appellant, who suffers from a mental disorder following a special verdict, is to be

distinguished from temporary release granted to prisoners under s. 2 of the Criminal Justice Act, 1960.

Conclusions

33. The appellant continues to be subject to, and to be detained pursuant to, the order of the Central Criminal Court of the 2nd May,

1995. That order remains in full force and effect. Thus, the return on behalf of the respondent is a full return and explains her valid

detention.

34. The release in 2000 was a temporary release, as is apparent from the documents. The Temporary Release document is set out in

full earlier in this judgment. It is clearly a temporary release and could not be regarded as a permanent release.

35. Further, there have been subsequent temporary release documents since 2000, and so the 2000 release has been subsumed in

the later temporary releases. Thus, the 2000 temporary release is not relevant in 2012. Nonetheless, the subsequent temporary

releases must be treated as having been granted to the appellant on similar terms and subject to similar conditions as the original

2000 temporary release.

36. Also, I would affirm the finding of the learned trial Judge that s. 3(2) of the Criminal Justice Act gives a wide discretion for the

temporary release of a person. Further, that there may be conditions, but the section says “conditions (if any)” which infers that

there may not be conditions.

37. A precondition for temporary release is the opinion of the person in charge that the patient is not dangerous to him or herself or

to others. This situation has changed, as deposed on behalf of the respondent.

38. Further, a temporary release, or a purported temporary release, cannot transform into a permanent release.

39. Consequently, the detention of the appellant is determined by the order of the Central Criminal Court of 1995.

40. A temporary release, or purported temporary release, does not nullify the order of the Central Criminal Court.

41. From the evidence before the High Court, it is clear that the appellant became unwell over the summer of 2012 and so the

fundamental precondition necessary under s. 3(2) of the Criminal Justice Act, 1960, that the person in charge is of the opinion that

the patient “is not dangerous to himself or to others”, altered.

42. I have no hesitation in dismissing the appeal.

43. It is now the situation that existing legislation provides a process for the review of the detention of persons, including the

appellant.

44. As stated previously, in the High Court the learned High Court Judge expressed his concern at the presence of the appellant

during the hearing. In this Court, where the appellant was also present, this Court expressed its concern. Senior Counsel for the

appellant indicated that it was his opinion, as a barrister, that it was appropriate that she be in court. He stated that he was satisfied

also of her capacity to give instructions. On behalf of the respondents it was indicated that attendance in court was likely to

interrupt the therapeutic process of the appellant. While the running of the appellant’s case is a matter for her counsel, in situations

where the medical opinion is that she should not be present, that medical opinion carries a significant weight and should not be

overborne lightly by counsel. This Court ordered that the appellant should not be present for the giving of the reserved judgment.

45. For the reasons given, I would dismiss the appeal.