Mental Health Appeal Provision Breaches Human Rights

A High Court case decides that the Mental Health Act appeal scheme is incompatible with the European Human Rights Convention – Michael Farrell details the events of this case.

  • High Court judgment says that part of Mental Health Act is incompatible with European Convention on Human Rights
  • Young man with intellectual disability experiencing a psychotic episode was detained but it was agreed that the care was unsuitable
  • Appropriate community care place wasn’t available
  • Ireland is now in breach of its international human rights obligations
  • Government needs to amend the law

In an important decision in May 2017, the High Court held that a man detained for 12 months under the Mental Health Act, 2001 did not have sufficient opportunity to challenge his detention.

In the case of A.B. v The Clinical Director of St. Loman’s Hospital & Others[i], Mr Justice Donald Binchy issued a declaration that Part 2 of the Mental Health Act, 2001 was incompatible with the European Convention on Human Rights (ECHR).  This was only the fourth such declaration made since the European Convention on Human Rights Act was passed in 2003. One of these declarations was subsequently overturned by the Supreme Court but the other two – in the Lydia Foy transgender case and the Donegan case dealing with evictions from local council accommodation – led to significant changes in the law.

A.B. is a young man with an intellectual disability who is in need of long-term residential care and 24-hour supervision, which he was not receiving from the health services. In May 2015 he suffered a serious psychotic episode, and was detained involuntarily at St. Loman’s psychiatric hospital for a period of three months. This was subsequently extended for a further six months by his consultant psychiatrist and confirmed by a Mental Health Tribunal.

However, in November and December 2015 and January 2016, the consultant indicated that A.B. had recovered from his psychiatric illness and no longer needed treatment in the psychiatric ward.  He was still being detained, only because there was no suitable placement and supervision for him in the community, and continued detention posed some risks for him.

There had been some moves towards organising a new placement for A.B. and the Muiriosa Foundation, a mental health charity, was prepared to care for him and had identified a suitable premises.  However, nothing had been confirmed by March 2016 and the consultant psychiatrist made a further order for his detention for another six months up to September 2016.  This was confirmed by the Mental Health Tribunal despite objections by A.B’s solicitor, Ms Corona Grennan.  An appeal to the Circuit Court was rejected because under the Mental Health Act the court was required to uphold detention orders unless the applicant could show that s/he was not suffering from a mental disorder. There was no provision that would allow the court to overturn or modify a detention order where, as in A.B’s case, the applicant’s mental health condition was now less acute and did not require detention in a psychiatric ward.

In May 2016, the Health Service Executive (HSE) informed A.B’s mother that sufficient funds were not available to finance his proposed placement.  By then he had already spent six months detained in the psychiatric ward, following the consultant’s statement that he no longer needed to be there, and he had also been the victim of an assault while in the ward.

In June, A.B’s solicitor was given leave to judicially review his detention but the law moves very slowly and by September 2016, when his detention was due to end, nothing had happened in the legal proceedings.  The consultant psychiatrist made a new order for his detention and this time it was for 12 months.  The consultant repeated that detention in the psychiatric ward was not suitable for A.B. but noted that the arrangement for his placement in the community had not yet been made.  He was unwilling to release A.B. until it was in place.  The Mental Health Tribunal again confirmed the order.

By December 2016 A.B. had been detained for more than 12 months, since the consultant had first said that this was quite unsuitable for him. The only reason for his continued detention was the failure of the authorities to provide appropriate care for him in the community. He was to be kept in St. Loman’s until the new accommodation was ready.  Nearly nine months later (August 2017) the placement was still not ready.

A.B’s case was heard in the High Court in March 2017 and judgment was given by Judge Binchy in May.  A.B’s legal team concentrated on the renewal of his detention for 12 months in September 2016.  They pointed out that after confirmation of the order by a Tribunal, which had to be done within 21 days, the only way for A.B. to challenge it was by appeal to the Circuit Court, which had to be lodged within 14 days and was ineffective anyway.

After that there was no procedure whereby A. B. could re-open the issue of his detention for another nine or ten months until the order expired.  If his mental condition improved or if an alternative accommodation and care arrangement became available, he could not apply to a court or independent body to order his release until the order had expired.  He would be dependent on the consultant deciding to revoke the detention order and could not challenge his decision if he refused to do so.

As it happened, the Mental Health Commission, which opposed A.B’s legal action, had itself expressed concern some years earlier that 12 months was too long a period for a detained person  to have to wait before s/he could seek another review of the detention order.

A.B’s legal team pointed out that neither habeas corpus nor judicial review, the methods usually used to challenge alleged wrongful detention, were suitable for a case like this, where the  points at issue would be the applicant’s mental condition or the appropriateness of the placement available to him.  This required a form of appeal that could deal with such issues. The judge accepted that argument.

A.B. then sought to challenge the constitutionality of the legislation where it made no provision for an independent review, requested by the applicant, of the lawfulness of detention for periods of nine or 10 months, or whether it complied with the ECHR.

The judge, rather surprisingly, held that A.B. did not have standing to mount a constitutional challenge, relying on previous judgments that held that only persons whose interests were likely to be adversely affected had standing to challenge the constitutionality of legislation. He noted that the HSE had by then informed A.B’s mother that funds were now available to provide the placement required for her son and suggested that because of this A.B’s interests were not at stake and the issue had become almost academic.  In fact, of course, the placement was still not available even some months after judgment was given in the case.

However, Judge Binchy went on to consider the position under the ECHR, which has been partly incorporated into Irish law by the ECHR Act, 2003.  Article 5.4 of the ECHR states that “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The judge reviewed a number of decisions by the European Court of Human Rights (ECtHR) in Strasbourg in somewhat similar cases and said:

[I]t is clear from the 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 unlawfulness’ of his or her detention. In the context of a renewal order of twelve months’ duration, a person detained under the Act of 2001, has no opportunity to exercise that right otherwise than in the context of appeal to the Circuit Court …”.

Applying this to A.B’s case, he said:

[I]n my view it is clear that the structure of the Act of 2001, in its present form, in permitting the detention of a person suffering from a mental disorder for a period of twelve months, without any opportunity to test the lawfulness of that detention (other than through an appeal to the Circuit at the very beginning of the period) is not in my view, compatible with Article 5.4 of the Convention”.

Presumably because he expected that A.B’s placement would be provided shortly afterwards, Judge Binchy did not hold that his actual detention was in breach of the ECHR but instead he decided to make a declaration under Section 5 of the ECHR Act, 2003 that Part 2 of the Mental Health Act was incompatible with the Convention because it did not make adequate provision for challenges to lengthy periods of detention.  The declaration was issued on 29th May 2017.

What does this mean in practice?  The declaration did not mean that A.B’s detention would be ended immediately.  Under the ECHR Act, the Convention cannot overrule domestic law, but it does mean that Ireland is now in breach of its international human rights obligations and the Government needs to amend the law to allow people in a similar position to A.B to seek earlier reviews of their detention.

The HSE and the Minister for Health have appealed the decision in A.B’s case, but the ECHR case law is very clear and it is surprising that the Government did not seek to change the legislation long ago.  It seems unlikely that the Court of Appeal or the Supreme Court would overturn the decision and if they did, A.B could apply to the Strasbourg Court which would be likely to be very critical of the Irish authorities for their failure to change the law.

And what about A.B. himself?   At the end of August 2017 he had still not been released from detention and provided with the accommodation and care in the community that had been recommended for him and promised by the authorities. The authorities are now faced with a dilemma.  A.B’s 12-month detention order will expire in mid-September.  Will it be renewed and will he continue to be detained in a psychiatric ward that the consultant psychiatrist says is inappropriate and even dangerous for him, and in breach of the ECHR? Or will the authorities finally provide the accommodation and care that he needs?


Comment: If the Irish Government does not amend the Mental Health Act as soon as possible it may face the embarrassment of a number of cases similar to A.B’s being taken to the Strasbourg Court. And the ECHR Act needs to be amended to require the Government to respond within a specified time limit to declarations of incompatibility with the ECHR, indicating what steps they propose to take to bring Irish legislation into line with the ECHR and the rulings of the Strasbourg Court.

[i] A.B. v The Clinical Director of St. Loman’s Hospital, the Health Service Executive, the Minister for Health, the Attorney General, Ireland,  and the Mental Health Commission and the Irish Human Rights and Equality Commission, Notice Parties; The High Court, Record No. 2016/469 JR

Michael Farrell, Solicitor is a Consultant in Human Rights Law.