Judge rules Board right to refuse to release man

In a case exposing a defect in new mental health laws, the High Court has ruled the Mental Health (Criminal Law) Review Board was entitled to refuse to release from the Central Mental Hospital a man found not guilty of murder by reason of insanity but who is no longer regarded as having a mental disorder.

The Board acted within its powers in refusing the man's release given its view that enforceable conditions on his release were necessary but the Criminal Law (Insanity) Act 2006 provided no means of enforcing any conditions, Mr Justice Michael Hanna found.

As the form of release considered appropriate by the Board could not be made under the 2006 Act and as the Board was mandated to have regard to the man's own safety and welfare and also to the public interest, it was entitled to refuse release, the judge said.

He noted the proposed conditions on the man's release, which the man had said he would adhere to, were "stern" and included requiring the man to abstain from excessive drink and drugs, to consent to be tested for drink and drugs and to maintain contact with his medical team.

The judge further noted the man is "not totally deprived of his liberty" as he has been on temporary release for some four days weekly, during which he works and lives with his family. This regime is the best available and unconditional discharge was neither in the best interests of the man or the public, he said. The man was at liberty "to a degree commensurate with his own and the public interest".

He was giving his reserved judgment on judicial review proceedings by the man aimed at securing clarification of the applicable law. The court's decision has implications for other persons in similar circumstances.

The man has been in the CMH for some years, has been deemed for a number of years to have no mental disorder, has been on temporary release for some time and has abided by the conditions of that release.

The man, who cannot be identified in any way for legal reasons, had taken his case after the Board refused in June 2007 to sanction his release.

The Board under the 2006 Act replaced the Minister for Justice as the entity which determines whether persons detained under mental health laws should be discharged. The Board had argued it was in the interests of the man himself and the public that conditions should be imposed on his release and the man's treating doctors at the CMH all agreed he was not suitable for unconditional release and should only be released on several specified conditions.

In the absence of a means under the 2006 Act of enforcing the conditions, the Board held an order for his release on conditions which were in effect unenforceable would amount to an unconditional release and it refused to make that order.

Yesterday, Mr Justice Hanna said a particular spirit drives the 2006 Act which was "paternalistic" in nature and designed to promote the care and treatmenmt of persons whose cases are reviewed by the Board. The Act also provided that the Board must take into account the public interest.

This same approach must inform the court's interpretation of the Act, he said. The court must also not invade the realm of the legislature in such as way as to rewrite the law.

Adopting that approach, he found Section 13.8 of the 2006 Act states that conditions may be imposed on the release of a person no longer deemed mentally ill or requiring in-patient treatment but it failed to provide for any statutory means of enforcing those conditions. The silence of the Section in that regard was "telling" as another Section of the Act provided for a means of supervising persons on temporary release from the CMH.

If the Oireachtas had intended to provide for a means of enforcing conditions on the full release of a person under Section 13.8, it must be presumed it would have said so, he said.

In all the circumstances of the case, the judge ruled the Board was entitled to refuse to release the man and also dismissed his claims that his right to liberty under the Constitution and European Convention on Human Rights had been breached.