Dr Charles O’Mahony is a lecturer in Public Law at the School of Law, NUI Galway. He completed a Ph.D in 2013 entitled “Diversion: A Comparative Study of Law and Policy Relating to Defendants and Offenders with Mental Health Problems and Intellectual Disability” at the Centre for Disability Law and Policy, School of Law, NUI Galway.
In May 2014 Edward Boylan was found by the Central Criminal Court to be not guilty by reason of insanity of the killing of his elderly father. According to media reports, Edward Boylan killed his father hours after the former's release from Dublin's Mountjoy Prison. He had been a “special needs” prisoner while at Mountjoy, with medical professionals aware that he was hearing voices. It was reported that his repeated requests for medication during his incarceration were refused. This case resonates with the facts established in the Report into the Death of Gary Douch (“Report”), also published in May. In 2006 Stephen Egan, a prisoner who had a history of mental health problems and violence, killed fellow Mountjoy prisoner Gary Douch. Both of these cases highlight serious deficiencies in provision for mentally ill prisoners in Ireland. These deficiencies are well known, chronic and seemingly intractable.
Despite the significant delays surrounding the Report's publication, it highlights the Irish government's failure to develop effective law and policy relating to prisoners with serious mental health problems. The Report revealed that Stephen Egan was a prisoner who was identified as being “troublesome and disruptive”; he was well known throughout the Irish prison system as a “management problem”. He had mental health problems and was moved between different prisons and the Central Mental Hospital in the months leading up to the killing of Gary Douch. The Report highlights many deficiencies within the prison system in Ireland. These deficiencies include but are not limited to overcrowding, poor record keeping, lack of risk assessments, poor provision of mental health services and poor communication and information sharing. These failures resulted in the death of Gary Douch, which was a failure on the part of the State to protect his right to life. Stephen Egan was subsequently prosecuted for Douch's death ; and Egan successfully raised the partial defence of diminished responsibility. From reading the Report it is abundantly clear that the Irish Prison Service failed Gary Douch and his family. It is also evident that the Irish Prison Service and the mental health services failed Stephen Egan.
Since the 1970s the deinstitutionalisation movement (closure of large psychiatric institutions) throughout the world has corresponded with an increase in the number of persons with mental health problems in prisons. This is the case in Ireland where persons with mental health problems are significantly over-represented in the prison population compared to the general population. This over-representation is a significant public policy problem, which numerous countries have sought to address in different ways. Diversion has emerged as one of the main responses, a policy which involves diverting persons with mental health problems from the criminal justice system to mental health services in hospitals or in the community. However, unlike other jurisdictions, Ireland has failed to meaningfully develop diversion. The Report of the Henchy Committee in 1978 identified that Ireland was out of step in comparison with other jurisdictions, in not providing powers to the courts to connect persons with mental health problems to mental health services. The Committee’s recommendations on diversion, which were progressive for their time, remain unimplemented and serious defects persist as catalogued in the Gary Douch Report.
A difficulty is that diversion is narrowly understood in Ireland as meaning transfer of seriously mentally ill prisoners to the Central Mental Hospital (in Dundrum) or in reach schemes such as the one operated at Cloverhill (a remand prison). This narrow understanding of diversion blinkers policy makers from the potential of developing diversion at different points of the criminal justice system (for example, diversion in the community, following arrest, before the trial, at court and following conviction). The Gary Douch Report acknowledges the potential of diversion and recommends developing diversion.
The Department of Health in its “White Paper: A New Mental Health Act” published in 1995 recommended that the courts be given powers of referral to general psychiatric services. However, these proposals were dropped and not included in the subsequent Mental Health Act 2001. While it is unclear why these proposals were not enacted it is of note that psychiatrists opposed the provision of such powers. There is an obvious need to generate political support and commitment for diversion and reform. However, there are many barriers to implementing the reforms envisaged in the Gary Douch Report. These barriers include vested professional agendas, scarcity of resources and the reality that prisoners have not been a policy priority for successive Governments.
The failure to develop diversion has certainly resulted in human rights abuses of prisoners with mental health problems. Tragically this failure forms part of the explanation of why Gary Douch died. When a person with mental health problems comes into contact with the criminal justice system there is an opportunity for the law to act as a therapeutic agent, through identifying problems faced by defendants and offenders and facilitating problem-solving and connection to services and supports. Given the decades of inertia and neglect of prisoners with mental health problems it seems unlikely that the reforms proposed will be implemented speedily or that the necessary resources will be made available.
Click here to read the Report's Executive Summary & Recommendations.