The Irish High Court has ruled that the lack of review mechanism for those detained by way of renewal order for a period of twelve months under the Mental Health Act 2001 incompatible with the European Convention on the Human Rights (ECHR).
In May 2015, the applicant, who had an intellectual disability, was admitted as a voluntary patient to St Loman’s Hospital following a psychotic episode. The next day he was detained involuntarily, and has been detained ever since on the grounds that he was found to be suffering from a mental disorder and that his detention was necessary. In November 2015, the applicant’s treating psychiatrist expressed the view that the applicant had recovered sufficiently to be discharged subject to him receiving the necessary residential support. Accommodation was identified and support was secured through the Muiríosa Foundation, however the applicant was advised that there were insufficient funds to provide supervised accommodation. As a result, in March 2016 an order for his continued detention until September 2016 was granted by the Mental Health Tribunal. This was extended for a further year without review in September 2016, pursuant to section 17(1) of the 2001 Act.
The applicant was granted leave to seek judicial review in June 2016, subsequently amending proceedings to seek an order of certiorari quashing the twelve month renewal and a declaration that his continued detention was repugnant to Article 40 of the Constitution and incompatible with the European Convention on Human Rights (ECHR). The applicant’s argument went to the lack of review mechanism for the duration of the twelve month renewal order.
The High Court initially deemed the applicant to lack locus standi to challenge the constitutionality of the 2001 Act. The Court deemed that the applicant had not disputed that he suffers from a mental disorder within the meaning of the Act of 2001, stating therefore even if such a review mechanism were available, the applicant would not have benefited as the Tribunal would have to affirm the detention order.
Judge Binchy acknowledged that it is abundantly clear from jurisprudence of the ECtHR that a person who is detained for an indefinite or lengthy period by reason of being of unsound mind, is entitled under Article 5(4) of the Convention to take proceedings at reasonable intervals before a court to put in issue the “lawfulness” of his or her detention. As such, the Court found that a person such as the applicant who is detained by way of a renewal order for a period of twelve months, has no entitlement during that period to initiate a review of his detention – other than by way of an appeal to the Circuit Court immediately following the making of the renewal order – and that the absence of such an entitlement within the framework of the Act is a violation of his Article 5(4) rights.
While judicial review and an application under Article 40 of the Constitution were further remedies available, none of these safeguards, either considered individually or as a whole, were seen to correspond to the right conferred by Article 5(4). This right prevails even where the applicant’s continued detention may be justified under the 2001 Act.
While the applicant did not expressly seek a declaration of incompatibility under Section 5 of the 2003 Act of 2003, the Judge Binchy stated that it is clear from Section 5 itself that the Court may issue such a declaration of its own motion, and the Judge proposed to do so, and will discuss with counsel the appropriate form of such declaration.
There have only been two confirmed declarations of incompatibility handed down by Irish courts in the 15 years of the ECHR Act, the first in Foy v An tArd Chlaraitheoir and the second in Donegan v. Dublin City Council.
This decision is currently under appeal.
Click here for the decision in AB v The Clinical Director of St Loman’s Hospital, HSE, The Minister for Health and the AG.