Mental hospital law 'unenforceable'

LEGISLATION TO allow for the conditional release of patients held at the Central Mental Hospital on foot of a court order is not enforceable, the chairman of the Mental Health Criminal Law Review Board has said.

In the board’s report for 2008, its chairman, Justice Brian McCracken, said that although legislation empowered the board to discharge some patients subject to conditions, it could discharge none last year because legal advice said the conditions would be unenforceable.

“The board is concerned that the prolonging of deprivation of liberty by reason of the lack of enforceability could become an issue in the absence of powers to discharge with enforceable conditions,” the former Supreme Court Justice said.

The board was established under the Criminal Law (Insanity) Act, 2006.

It is responsible for reviewing the detention of patients at the Central Mental Hospital (CMH) who have been referred there after a court decision that they are unfit to be tried or have been found not guilty of an offence because of insanity.

The board is also responsible for reviewing the detention of prisoners suffering from mental disorders and who have been transferred from prison.

Before the board was set up, patients sent to the hospital stayed there until the government decided to release them.

There are three people on the board: Mr Justice McCracken; consultant psychiatrist Dr Michael Mulcahy; and Tim Dalton, former secretary general at the Department of Justice, Equality and Law Reform.

The legislation allows the board to discharge patients whom they believe are suitable for release. It also allows for the release of patients subject to certain conditions, but does not give the board power to readmit patients if they breached those conditions.

On average, 80 patients are detained at the hospital under the legislation at any one time, and their detention is reviewed at least every six months.

In 2008, 150 reviews took place and one order for unconditional discharge was made.

The majority of patients reviewed had committed very serious offences, including homicide.

In his foreword, the chairman said the board made no conditional discharges because it believed, on legal advice, that any conditions it might impose would not be enforceable.

“While the majority of persons detained at the hospital during 2008 were not presently suitable for consideration for conditional discharge, the board saw a number of patients who it would discharge if it could do so subject to enforceable conditions,” Mr Justice McCracken said.

The conditions could include compliance with instructions on medication, abstinence from alcohol, or mandatory urine testing.

“The board is of the view that the continuing detention of these patients is contrary to the original intention of the 2006 Act and hopes that legislation can be enacted in the near future to remedy the unfortunate situation which has arisen,” the chairman said.

A spokesman for the board said it was hopeful an amendment to the legislation would come before the Oireachtas within the next few months to allow for the operation of conditional discharge.