Mentally ill man lawfully detained as ward of court, Supreme Court rules

A convicted mentally ill man whose release from the Central Mental Hospital (CMH) posed potentially "catastrophic" risk to himself and others was lawfully made a ward of court days before his sentence for serious violent offences was due to end, the Supreme Court has ruled.

The man needed to be detained in the CMH for his protection and that of the public and remains appropriately detained there under the High Court’s wardship jurisdiction for reasons including he is of unsound mind, the five judge court also held.

Other cases

Its unanimous judgment dismissing the man’s appeal over his wardship and detention addresses important issues, with effects for other cases, concerning the intersection between the High Court’s wardship jurisdiction and mental health laws.

Lawyers for the man accepted his detention in the CMH was appropriate but the dispute was about the legal mechanism for that. They argued his rights would be better protected under mental health legislation.

Giving the judgment, Mr Justice John MacMenamin said a lot of the problem arose because, while the man met criteria for detention under the Mental Health Act 2001, that provided he could not be admitted directly to the CMH and must first be taken for assessment to an “approved” centre.

Psychiatrists told the High Court they had been informed by the HSE assessment had been "explored" but it appeared none of the approved centres were willing to take him for security reasons.

Invidious position

The HSE’s “eleventh hour” application for wardship in late 2016 left the president of the High Court, Mr Justice Peter Kelly, in an “invidious” position with little choice but to grant it, Mr Justice MacMenamin said.

Otherwise, the man, deemed very dangerous, could have been released within four days into the community with “potentially catastrophic”” consequences for himself and others.

There was no direct evidence before the High Court regarding the HSE’s attempted compliance with the provisions of the 2001 Act, he said.

There was sufficient material before the High Court to show it was not possible to operate the provisions of the 2001 Act and Mr Justice Kelly’s description of the relevant provisions as “unwieldy” was “an understatement”.

While it was possible some of those provisions were inspired by “overriding concerns” about overcrowding in the CMH, the High Court was owed a “much fuller” explanation about why “this crux” had risen but had no time to seek that.

Backstop

The courts have inherent jurisdiction to be used only as a “backstop” when statutes do not govern a particular situation but, in this case, there was a statutory regime of wardship, he said.

The wardship and detention orders were “necessary and appropriate” and the High Court had no other legal option but to make them.

The orders were also necessary to vindicate the man’s right to life and welfare and to protect the rights and welfare of others.

Fair procedures were observed and provision was made for the man to be legally represented, he held.

While the man undoubtedly met the criteria for admission to the CMH as defined in the 2001 Act, the requirements for wardship orders, on the evidence before the High Court including he was of “unsound mind”, were also satisfied.

Under wardship, the safeguards and protections as regards procedural rights, review by the courts, consent and treatment could be no less than if he was admitted to the CMH under the MHA, the judge said.

The fact wardship is a separate jurisdiction does not prevent the High Court adopting “”mirror” procedures to vindicate the constitutional and ECHR rights of wards of court and Mr Justice Kelly set out a list of those, he added.

Without such protections, questions might arise concerning compliance with the Constitution and ECHR, he stressed.

In cases of minors at risk in the last two decades, the exercise of the High Court’s inherent jurisdiction became “the rule” and “a first, not a last resort”, he observed.