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A mentally ill remand prisoner, who cannot be transferred to the Central Mental Hospital (CMH) because of lack of beds, has brought a High Court challenge over the lawfulness of his detention.
The man, who is remanded on a murder charge, would not have to be released immediately if the challenge succeeds, the High Court was told on Friday.
While a challenge to the legality of detention usually results in a person being released, in this case the man could remain in prison to see if that would allow him to be moved up the CMH waiting list, Michael O’Higgins SC, for the man, said.
In the challenge, it is accepted the CMH does not have bed capacity. The question for the court is what are the consequences of a finding that his detention is unlawful under article 40 of the Constitution, counsel said.
Mr O’Higgins was opening the man’s proceedings against the prisoner governor and the Director of the CMH, who opposed the application.
They say article 40 proceedings are not the appropriate route for such a case and it should be pursued via a judicial review. The prison says he is getting the treatment he needs there from the CMH outreach team but it accepts he should be transferred when a bed is available.
Ms Justice Niamh Hyland, following an application from Mr O’Higgins under section 27 of 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 the man not be identified.
Mr O’Higgins said his client is suffering from homicidal thoughts in prison and it was not accepted, as claimed by the prison, 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 he was entitled to refuse, counsel said. It was not accepted his immediate needs were being met.
His psychiatric condition includes that he has schizophrenia and is actively psychotic, counsel said. His condition remains such he needs appropriate treatment which cannot be provided in a prison.
He is not in a condition to be assessed for his fitness to plead but a psychiatrist says he would be if he was 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, is not the case, was racked with coronavirus and the authorities refused to release any prisoner, 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. But if it affects the custody of a person in that some fundamental right is being denied, a court may take the view it does impair the lawfulness of the detention.
Mr O’Higgins disagreed that judicial review proceedings were the appropriate route. There would be no remedy if 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 Co Dublin.