CROKE v. IRELAND

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33267/96

by Sean CROKE

against Ireland

The European Court of Human Rights (Fourth Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Pellonpää, President,

Mr. G. Ress,

Mr A. Pastor Ridruejo,

Mr. L. Caflisch,

Mr. I Cabral Barreto,

Mr. V Butkevych,

Mrs N Vajic, Judges,

withMrV. Berger, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 September 1996 by Sean Croke against Ireland and registered on 1 October 1996 under file no. 33267/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on

26 February 1998 and the observations in reply submitted by the applicant on 12 May 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen, born in 1956 and he is currently detained in a psychiatric hospital. He is represented before the Court by Mr Dara Robinson, a solicitor practising in Dublin. The facts as submitted by the parties may be summarised as follows.

A.Particular circumstances of the case

In the early 1980s the applicant was diagnosed as suffering from mental illness. He lived with his parents and was treated with medication and by three temporary admissions to a psychiatric hospital (the longest being for approximately three months).

On 1 July 1993 the applicant was admitted, further to a request by his parents, to a psychiatric institution (St. Ita’s Hospital) on foot of a reception order (section 184 of the Mental Treatment Act 1945 - "the 1945 Act"). He was received and retained as a temporary chargeable patient for the purpose of receiving treatment. On 7 July 1993, believing that he was to be given electric shock therapy, the applicant escaped from hospital and returned home. Subsequently, he resisted his removal from his parents' home to the hospital, stabbing three male nurses (one nearly fatally) in the process. He was then arrested by the police and brought to the police station. No criminal charges were pursued. From there he was returned to the psychiatric hospital and transferred to the Central Mental Hospital (administered by the Eastern Health Board) for “special treatment” pursuant to section 208 of the 1945 Act. On 14 July 1994 the Supreme Court ordered the applicant's release since, even though the applicant had been transferred under section 208 of the 1945 Act, the six month period authorised by the original reception order (July 1993) had expired without having been extended as required by section 189 of the 1945 Act.

On the same day a further application for his detention was made by an Eastern Health Board Official (section 162 of the 1945 Act). A recommendation for the applicant's reception was made by a doctor (section 163 of the 1945 Act) who stated that he had examined the patient on 23 June and 13 July 1994. He noted that he had observed a "serious lack of insight and inconsistencies after eleven months of treatment including relative to his need for treatment and to the nature and gravity of his actions". That doctor also noted that the facts communicated by others to him included "schizophrenia with a psychopathic element and bipolar mood swings with delusional system, a history of non-compliance, relapses and grave violence". The Clinical Director of St. Ita’s Hospital then made a chargeable patient order pursuant to section 171 of the 1945 Act certifying that he had examined the recommendation for the applicant's reception, had examined the applicant and was satisfied that he was of unsound mind and was a proper person to be taken charge of and detained under care and treatment. He was detained pursuant to section 172 and, on the same day, was again transferred to the Central Mental Hospital under section 208 of the 1945 Act.

On 26 October 1994 the applicant's solicitor requested information from the Central Mental Hospital as to the length of time it was expected that the applicant would be detained, as to the nature of the treatment he was receiving and when and by what method his detention would be reviewed. The response, dated 15 November 1994, came from a psychiatrist employed by the Eastern Health Board. It was explained that the Health Board had no particular plan as to the length of detention foreseen for the applicant, that he was receiving therapy and other support treatment and that his detention was reviewed weekly by staff. However, the psychiatrist did not know of any other formal review process that applied to the applicant's detention.

On 13 March 1995 the applicant commenced habeas corpus proceedings pursuant to Article 40 of the Constitution, the basis of which was a challenge to the constitutionality of sections 163, 171 and 172 of the 1945 Act on the grounds that the making of a Reception Order required judicial intervention and that the indefinite period of detention provided for under section 172 required an automatic and independent review procedure. On the same day an order was made under Article 40 of the Constitution that the Medical Director of the Central Mental Hospital produce the applicant on 28 March 1995 and certify the grounds of his detention.

The hearing before the High Court took place from 28 to 30 March and from 2 to 5 May 1995. On 31 July 1995 the High Court concluded that section 172 fell below the norms required by the constitutional guarantee of personal liberty. The High Court noted the constitutional habeas corpus enquiry provided for under Article 40(4) may probe more deeply than the common law habeas corpus procedure. Nonetheless, it was not a regular, periodic or automatic scrutiny. The High Court concluded that the absence of an independent review of the decision to detain and the lack of an automatic review of long-term detention meant that the provisions of section 172 were repugnant to the Constitution. The High Court did not therefore consider it necessary to consider the constitutionality of sections 163 and 171 and, consequently, only the constitutionality of section 172 was referred by way of a case stated to the Supreme Court pursuant to Article 40.4.3 of the Constitution.

On 31 July 1996 the Supreme Court overturned the High Court's judgment. That court found it relevant that section 172 applied to persons detained after the steps outlined in sections 163 and 171 had been fulfilled. That court noted that by virtue of Article 40.3.1 and 40.4.2 the parliament was, in permitting detention pursuant to section 172, obliged to ensure that, not even for a short period, would an individual be unnecessarily deprived of his liberty.

As to whether there were sufficient protections associated with section 172 to meet this obligation, the court had regard to, in the first place, the discharge procedures provided for in sections 208, 218, 220, 221 and 222 of the 1945 Act.              It emphasised that, in exercising their powers and functions imposed by these sections of the Act, the relevant empowered persons are obliged to act (in all proceedings, procedures, discretion and adjudications) in accordance with the principles of constitutional justice, are not entitled to act in an unlawful manner, are not entitled to act arbitrarily, capriciously or unreasonably and must have regard to the personal rights of the patient, including the right to liberty which can be denied only if the person is of unsound mind, in need of care and treatment and has not recovered.

The Court then analysed the habeas corpus powers of the court pursuant to Article 40(4)(2) of the Constitution pointing out that once such an application is made, the High Court must conduct an inquiry forthwith into the lawfulness of the detention, the onus is on the detaining authority to justify the detention and the High Court must be satisfied that:

"(1) the person detained is a person of unsound mind and in need of care and treatment;

(2) … the procedures outlined in the Act have been complied with;

(3) the person detained has not recovered;

(4) the person detained is not being unnecessarily deprived of his liberty."

Moreover, the Supreme Court referred to the "wide jurisdiction" of the President of the High Court in lunacy matters, such jurisdiction constituting a duty to intervene on the patient's behalf, to cause an inquiry to be made into the lawfulness of such a person's detention and to direct release if the patient has recovered or is being otherwise held unlawfully. Finally, the safeguards provided by Part XVIII of the 1945 Act in the form of an Inspector of Mental Hospitals were also to be taken into account.

As to the applicant's submissions on the lack of automatic reviews, the Court found that while this may be "desirable", the fact that the Mental Treatment Act 1981 had never come into force did not mean that section 172 was constitutionally flawed because of the protections and safeguards outlined above and the lack of any evidence of a "systematic failure" of such safeguards and protections. In addition, it was considered "inherent" in section 172 that an obligation is placed on the resident medical superintendent to regularly and constantly assess a patient’s mental state and that if such a review is not regularly carried out in accordance with fair procedures and rendering justice to the patient, then the court's intervention can be sought on the basis of principles of constitutional justice. Accordingly, the Supreme Court concluded that it had not been established that section 172 of the 1945 Act was invalid. [The substantive habeas corpus application case has not been re-entered].

B.Relevant domestic law and practice

1.Applicable legal provisions and jurisprudence

(a)The Irish Constitution 1937

Article 40(4)(1) provides that no citizen shall be deprived of his personal liberty save in accordance with law. Article 40(4)(2) contains the habeas corpus provision of the Constitution and provides that upon application by a person alleging that he is being unlawfully detained, the High Court shall forthwith enquire into the said complaint and may order the person detaining the applicant to produce the body of the applicant before the High Court and to certify in writing the grounds of detention. The High Court shall, once the person is so produced and having given the authority detaining the applicant an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. Article 40(4)(3) provides that where the High Court is satisfied that the detention is in accordance with the law but that such law is unconstitutional, that court shall refer the question of the constitutionality of the relevant law to the Supreme Court by way of a case stated.

(b)The Mental Health Act 1945 (as amended)

All references to the 1945 Act are to that Act as amended by subsequent legislation. The 1945 Act provides the statutory framework for, inter alia, the detention of persons with mental disorder other than mentally disordered persons charged with criminal offences and wards of court.

Under the 1945 Act there are two categories of non-voluntary mentally ill patients - “temporary patients” and “persons of unsound mind”. The essential difference is that the former is a person who requires detention for treatment but for not more than six months (which period can later be extended) and the latter is a person detained as requiring treatment but who is not likely to recover in less than six months. A "chargeable" patient is a patient who is receiving mental hospital assistance and who is unable to provide the whole cost of such assistance (section 3 of the 1945 Act).

(i) Initial detention procedure

Where it is desired to have a person admitted as a "person of unsound mind" and as a "chargeable patient" application is made under section 162 of the 1945 Act. That section provides that an application must be made to a registered medical practitioner for a recommendation for the reception and detention of the person. Section 163 regulates the recommendation of the medical practitioner and provides that that doctor must have already examined the person within 24 hours prior to receipt of the application or must examine the person within 24 hours. If that practitioner is satisfied that it is proper to make the recommendation and is of the opinion that the person will, if received, be a chargeable patient, he shall make the recommendation in the prescribed form. The recommendation must state the date of the examination of the person, contain a certificate that the person is of unsound mind, is a proper person to be taken in charge and detained under care and treatment and is unlikely to recover within six months together with a statement of the facts upon which the registered medical practitioner has formed his opinion distinguishing between the facts he observed himself and the facts communicated to him.

Section 171 provides for the making of the reception order on transfer to an institution further to a recommendation for reception. Once a person to whom a recommendation relates arrives at an institution and the recommendation is presented, the resident medical superintendent ("RMS") of the hospital (or another medical officer of the hospital acting on his behalf) shall examine the person and (if he is satisfied that the person is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment) shall make, in the prescribed form, a chargeable patient reception order for the reception and detention of the person as a person of unsound mind in the hospital.

Section 172, insofar as relevant, reads as follows:

"(1) Where a chargeable patient reception order is made, any of the persons mentioned in subsection (2) of this section may receive and take charge of the person to whom the order relates and detain him until his removal or discharge by proper authority or his death ...

(2) The persons entitled to receive, take charge of, detain, ... a person under this section shall be -

(a) the mental hospital authority maintaining the district mental hospital mentioned in the relevant chargeable patient reception order,

(b) the resident medical superintendent of such hospital,

(c) the other officers and the servants of the hospital."

(ii) Discharge

Once the person in charge of the mental hospital in which the patient is detained is satisfied that the latter has recovered, the patient can be discharged on notice to a relative but only with the approval of the RMS (section 218).

Section 220 provides for the application by a relative or friend of a person detained as a chargeable patient to take care of such person and the person in charge of the institution may if he so thinks fit and if he is satisfied that the patient will be properly taken care of, discharge the patient. A person can only be discharged in this manner with the approval of the RMS.

However, no person can be discharged from a mental hospital if the RMS (or as relevant his medical attendant) certifies that a person cannot be discharged since he is dangerous or otherwise unfit (section 221 of the 1945 Act). The making of such a certificate can be effectively appealed to the Minister for Health who may obtain a copy of the certificate, may request the Inspector of Mental Hospitals to examine the patient and may on receipt of the latter's report, order the discharge of the patient. This section does not apply where the Minister for Health otherwise directs discharge.

Under section 222 any person may apply to the Minister for Health for an order for the examination of a person detained in a psychiatric institution by two registered medical practitioners approved by the Minister, which examination will be at the expense of the applicant. Once so ordered the medical practitioners shall examine the patient on at least two occasions and, if they certify that the patient may be discharged, the Minister "may" direct the discharge of the patient.

Part XVIII of the 1945 Act provides for an Inspector of Mental Hospitals. The Inspector may, whenever and so often as he thinks fit and at any time during the day or night, visit and inspect any psychiatric institution and visit and examine any patient therein (section 235) and he is obliged to visit and inspect every psychiatric institution at least once a year (section 236). He must see every patient he has been requested to examine (including a request by the patient him/herself) or a patient the propriety of whose detention he has reason to doubt. In respect of the latter situation, he must notify the person in charge of the institution that he has doubts as to the propriety of that detention (section 237).

If the Inspector forms the opinion that the propriety of the detention requires further consideration he shall report to the Minister for Health. The Minister for Health may, if he thinks so fit and having considered the report, require the Inspector to visit the patient and report to the Minister on the patient's mental condition and the Minister may then, if he thinks so fit, by order direct the discharge of the patient to whom the report relates (section 239).

The President of the High Court also has a role to play as regards the discharge of persons detained in psychiatric institutions. Section 241 provides that the President has the power to order the Inspector of Mental Hospitals to visit and examine any person detained as a person of unsound mind and to report to the President on the condition of such persons and the President can also appoint a barrister to assist in any such visit or investigation. According to section 266 of the 1945 Act, any letter addressed to, inter alia, the President of the High Court by a patient in a mental institution shall be forwarded to the addressee unopened. Finally, the President of the High Court has an inherent jurisdiction, as successor to the Lord chancellor of Ireland in lunacy matters, which jurisdiction includes the power to make an enquiry as to whether a person is or is not of unsound mind and to make consequential orders.

Section 208 allows for the transfer of patients to another hospital to obtain treatment not available in the hospital where the patient is currently detained.

Section 260 of the 1945 Act reads as follows:

“No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.”

(c)Relevant jurisprudence

(i)Donnelly v. the Director of the Central Mental Hospital Dundrum (unreported). The plaintiff commenced habeas corpus proceedings on 3 April 1995 and the ex parte application was heard on that day. A return date was fixed for 7 April 1995 on which date the respondent authority had to present grounds justifying the applicant’s detention. On that date the case was adjourned until 25 May 1995 when the parties agreed that the medical evidence no longer justified the applicant’s detention. The High Court consequently ordered the applicant’s immediate release.

(ii)Gallagher v. the Director of the Central Mental Hospital, the Minister for Justice and the Attorney General ([1996] 3 IR 1). The applicant had been found guilty of murders committed in 1988 but was declared insane pursuant to the Trial of Lunatics Act 1883. In April 1996 he was given leave to apply for an order for his release to the High Court pursuant to Article 40 of the Constitution. An application by a relative of two of the applicant’s victims to be joined to the proceedings was refused by the High Court on 9 July 1996. On 6 September 1996 the High Court found that the Minister for Justice had properly exercised his powers in approving, based on expert evidence, a programme of supervised outings only for the applicant. It also found that, although the Minister had delayed in an unjustifiable manner in responding to the applicant’s request for release, that delay was not such as would render the applicant’s detention unlawful.

2.Past and present proposed legislation

(a)The Health (Mental Services) Act 1981

This Act was passed by the Oireachtas (the Parliament) in 1981 but has never been brought into force by the necessary statutory instrument. Part IV of that Act provides for, inter alia, the establishment of a specialised Psychiatric Review Board which can review, pursuant to an application, detention or review (without the necessity for an application) the detention of long-term detainees approximately every six months. That Board would have the power to order the discharge of detainees.

(b)The Green Paper on Mental Health (1992)

The Green Paper, an official Government publication, contained a review of domestic and international standards as regards, inter alia, detention of those with mental health problems and invited the views of interested parties. It explained that the 1981 Act had not been brought into force because its provisions had been overtaken by international and psychiatric services developments. Having referred to the principles established by the Convention organs, the Government stated that neither the 1945 nor the 1981 Act were entirely in accordance with the State's international obligations, the main deficiency in the current legislation being the absence of a review of the decision to detain by a body independent of the person taking the decision and of the executive although a review by a court in the strict sense would not be required.              

(c)The White Paper on Mental Health (1995)

Having obtained the views of interested parties, the Government published a White Paper in 1995 entitled “A New Mental Health Act” which outlined the changes the Government proposed to include in new mental health legislation. It confirmed that it had decided to establish an independent Mental Health Review Board with power to direct the discharge of a detainee. While it was considered that review on application only would satisfy the requirements of the Convention, it was also considered that that would not suffice for the purposes of the UN General Assembly Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care 1991.

Accordingly, it was proposed that the Board would be responsible for reviewing every initial decision to detain a patient in a psychiatric hospital and every decision to extend that detention. That review would include checking the relationship of the applicant and the person who was the subject of the order, that the criteria for detention had been complied with, that the rules in relation to the medical recommendation had been complied with and that the psychiatrist who had signed the detention order was authorised to do so. For decisions extending detention longer than a year, there is an additional review by a panel of the Board and the review would be even more detailed including an examination of whether the person was suffering from a mental disorder and whether, in accordance with certain criteria, continuing detention was appropriate. Moreover, if a detainee objected to the making or extension of a detention order, the panel of the Board would hold a hearing on the matter. An appeal would lie from the decision of the Board to the High Court. The Board would be empowered to direct discharge subject to an appeal to the High Court.

              The following statistics were given in the White paper as to the amount of discharges between 1991-1993 of involuntary patients (excluding death) by reference to the length of stay.

1991

less than 1 week

1-2 weeks

2-4 weeks

1-3 months

3months -1 year

1-5 years

5-10 years

10-25 years

more than 25 years

total discharges

576

541

629

910

423

63

6

19

30

3197

18%

16.9%

19.7%

28.5%

13.1%

2%

0.2%

0.6%

0.9%

100%

1992

514

465

646

821

355

53

6

8

21

2889

17.8%

16.1%

22.4%

28.4%

12.3%

1.8%

0.2%

0.3%

0.7%

100%

1993

565

494

614

787

314

52

2

13

24

2885

19.5%

17.2%

21.4%

27.5%

11.0%

1.8%

0.1%

0.5%

0.8%

100%

It was foreseen that the new Board would review approximately 3000 new detention orders per year and about 1900 extensions of detention (of which 700 would be also reviewed by a panel of the Board). Based on the experience in Northern Ireland, it would be likely that about 5-10% of those detained in any year would object to their detention which would mean that between 150 and 300 hearings would be held by a panel of the Board each year.

In July 1996 the Government authorised the drafting of a Mental Health Bill providing for the independent review of decisions to detain a mentally disordered patient by a Mental Health Review Board and for an appeal against the decisions of that Board. No such legislation has been adopted as yet.

COMPLAINTS

The applicant complains about the absence of an automatic and independent review of detention either immediately before or after his initial detention and about the absence of a periodic, independent and automatic review of his ongoing detention thereafter. He invokes Article 5 § 1, Article 5 § 1(e) and Article 6 of the Convention. 

PROCEEDINGS

The application was introduced before the European Commission of Human Rights on 11 September 1996 and registered on 1 October 1996.

On 3 December 1997 the Commission decided to communicate under Article 5 § 4 of the Convention the applicant’s complaints concerning the absence of an automatic and independent review of his detention either immediately before or after his initial detention and about the absence of a periodic, automatic and independent review of his ongoing detention to the respondent Government.

The Government’s written observations were submitted on 26 February 1998. The applicant replied on 12 May 1998, after one extension of the time-limit fixed for that purpose.

On 27 May 1998, the Commission granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains about the absence of an automatic and independent review of detention either immediately before or after his initial detention and about the absence of a periodic, independent and automatic review of his ongoing detention thereafter. He invokes Article 5 § 1 and Article 5 § 1(e) of the Convention. Although the applicant also invokes Article 6, he does not specify in what precise respects. Given the nature of the complaints, the Court finds it appropriate to consider the complaints regarding the making of the detention order under Article 5 § 1(e) and those relating to reviews immediately after and during his detention under Article 5 § 4 of the Convention. Article 5 , insofar as relevant, read as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

       …

e.  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

…

4.  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.”

A.As to exhaustion of domestic remedies and timely introduction

The Government refer to two categories of safeguards and proceedings, pointing out that the applicant has not exhausted any such remedies.

The first category is proceedings before the High Court including an application for habeas corpus under Article 40(4) of the Constitution, the administrative law remedy of judicial review based on grounds of illegality, unreasonableness, breaches of natural justice and fair procedures or acting outside of the scope of statutory powers, the inherent jurisdiction of the President of the High Court (together with that judge’s role under section 241 of the 1945 Act ) and an application to the High Court for leave to institute civil proceedings under section 260 of the 1945 Act.

The second category of proceedings, although not judicial proceedings stricto sensu, offer important protection according to the Government. This category includes the medical certification process on detention (sections 162, 163 and 171), the obligation to detain the applicant only as long as it is necessary for the purposes of his treatment and to discharge him upon recovery (sections 208, 218 and 219), the right to apply for an order to examine the patient (section 222), the right of a relative or friend to apply for the patient’s discharge (section 220), the certification required of the Resident Medical Supervisor in the case of refusal to discharge (section 221) and the powers of the Inspector of Mental Hospitals (sections 237 and 239 of the 1945 Act).

Moreover, the Government point out that any person or body exercising any power or discretion under the 1945 Act is obliged to do so in accordance with the constitutional rights of the patient which include the right to liberty which can only be denied if the patient is a person of unsound mind and in need of care and treatment. Accordingly, the burden necessarily shifts to the applicant to show that the remedies outlined above are ineffective, inadequate or inaccessible. Furthermore, there are no special circumstances which would excuse the applicant from exhausting the above remedies as existed in the O’Reilly case against Ireland (no. 24196/94, Dec. 22.1.96, D.R. 84, p. 72).

Secondly, the Government submit that there is no final domestic decision such as would bring the applicant’s complaints within the scope of the Convention. They point out that, while the applicant has challenged the constitutionality of the relevant provisions, he has never completed, since the beginning of the relevant period of detention, a challenge to the legality of his detention.

Accordingly, the Government contend that, since the applicant has not utilised any of these procedures since 1994, he has not exhausted domestic remedies. Alternatively, it is argued that the applicant has not introduced his complaint within six months of a final decision having been taken.

The applicant emphasises that his essential complaint under the Convention is that his original detention should have been sanctioned by an independent court or by a tribunal acting judicially and that his subsequent detention should be reviewed automatically at reasonable intervals by an independent court or by a tribunal acting judicially, which review could tackle the medical and, therefore, the legal propriety of his detention. Accordingly, he has exhausted domestic remedies because these are precisely the arguments upon which he based his request for release in a constitutional action which was taken as far as the Supreme Court. If he had succeeded in his constitutional challenge, he would have undoubtedly benefited from any legislative changes. The Government’s argument, that he took neither habeas corpus proceedings, judicial review proceedings or civil proceedings, is based on a misunderstanding of his complaints. Moreover, he is in a class of persons (involuntary psychiatric detainees) directly affected by the absence of appropriate legislation.  

In the alternative, the applicant argues, citing the above-mentioned O’Reilly case, that his complaints should be admitted given the special circumstances of his case. These include the Government’s public acceptance that the 1945 Act violates the Convention in the precise manner about which he complains, the delay in introducing amending legislation despite that acceptance and the fact that any further proceedings issued by him would be based on the same arguments as he has already raised before the domestic courts.

The Court recalls that an applicant is required to make normal use of domestic remedies which are effective, sufficient and accessible (no. 24196/94, O’Reilly v. Ireland, loc. cit. at p. 81). It is also recalled that, in the event of there being a number of remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance (Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 12, § 23).

The Court notes that the applicant does not maintain that he was at the material time mentally sound and that he no longer required detention for treatment. Accordingly, the Court considers that the applicant cannot be required to exhaust remedies the basis of which is a claim of mental soundness and a consequent request for release on that basis.

Rather the applicant claims that, as a compulsory psychiatric detainee, he has the right to have available to him reviews which comply with the requirements of Article 5 of the Convention by which, inter alia, his psychiatric health and, therefore, the need for detention will be regularly reviewed and that the applicable domestic legislation is deficient in this respect. In this regard, the Court recalls that a declaratory action before the High Court, with the possibility of an appeal to the Supreme Court constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights. In a legal system which provides constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation (no. 24196/94, O’Reilly v. Ireland, loc. cit., at p. 82).

The Court observes that the applicant challenged the alleged deficiencies of domestic legislation in respect of which he now complains in constitutional proceedings and that the Supreme Court ruled on the matter on 31 July 1996, finding the review procedures available consistent with the constitutional guarantees of liberty of the individual. Accordingly, given the ambit of the applicant’s complaints, the Court finds that the applicant has exhausted domestic remedies and that he has introduced his application within six months of the final decision of the Supreme Court decision of July 1996 within the meaning of Article 35 § 1 of the Convention.

B.Article 5 §§ 1 and 4 of the Convention

The Government maintain that the applicant’s detention is lawful and not arbitrary within the meaning of, inter alia, the Winterwerp judgment (Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39). The Government note, in particular, that the applicant has never contested his illness nor made a case in court that his mental state was such that he should not be detained. Furthermore, the two categories of proceedings to which the Government refer above are available to the applicant and, either individually or in combination, satisfy the requirements of Article 5 § 4 of the Convention. No time limit applies to any of these procedures and, save for section 260 of the 1945 Act, no leave or veto applies. There is no procedural restraint or significant or obstructive degree of formality.

The Government submit that the Article 5 § 4 reviews are not required to be automatic but rather that an opportunity exists for such proceedings to be taken by the patient (reference is made to, inter alia, De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, Winterwerp judgment, loc. cit., X v. the United Kingdom judgment of 5 November 1981, Series A no. 46 and to the Keus v. the Netherlands judgment of 25 October 1990, Series A no. 185-C). In any event, the Supreme Court pointed out that there was no suggestion that reviews by the medical authorities in the psychiatric institution did not, in fact, take place.

It is submitted by the Government that it is indisputable that the High Court (the first category of remedies referred to above) is clearly independent of the parties and of the executive.

As to the requirement that the review cover the domestic and Convention lawfulness of the detention, the Government note that the High Court found that the applicant was detained in accordance with domestic law. In addition, and having regard to the scope of the inquiry undertaken by the High Court in the context of a habeas corpus application (and which was outlined by the Supreme Court in its judgment of 31 July 1996 in the applicant’s case), such an investigation covers both the domestic and Convention lawfulness of detention.

As to the “speedily” requirement of the Article 5 § 4 reviews, the Government argue that the two sets of proceedings taken by the applicant were conducted speedily given the issues raised and their importance and complexity. Indeed, Article 40 of the Constitution requires an inquiry “forthwith” and hence such proceedings are determined more quickly than normal High Court proceedings.

Moreover, the Government point out that the existence of mental illness is primarily addressed in the operation and implementation of the 1945 Act and they consider that the statistics published in the 1995 White Paper of the Department of Health prove that ongoing reviews of patients’ detention take place speedily resulting in successful discharges. Pursuant to the Commission’s request for examples of speedy reviews concerning, inter alia, the existence of mental illness warranting compulsory detention, the Government refer to the cases of  Shane Donnelly v. the Director of the Central Mental Hospital Dundrum and of John Gallagher v. the Director of the Central Mental Hospital, the Minister for Defence and the Attorney General (see ‘Relevant Domestic Law and Practice’ above).

The Government submit that High Court proceedings are manifestly of judicial character. Given the constitutional justice requirements on those bodies and persons involved in the second category of proceedings which were detailed by the Supreme Court in its judgment of July 1996, these procedures also satisfy the necessary procedural requirements of Article 5 § 4 reviews.

As to the requirement that Article 5 § 4 reviews are available at “reasonable intervals”, the Government point out that the only matter that is res judicata is the constitutionality of the relevant sections of the 1945 Act and there is no bar to the applicant taking further proceedings regarding the existence of ongoing mental illness requiring care and treatment at reasonable intervals.

Accordingly, the Government submit that the application is inadmissible as manifestly ill-founded or, in the alternative, that it does not give rise to a violation of the Convention.

The applicant makes a number of preliminary comments. In the first place, he urges the Court to consider the submissions of the Government against the background of their failure to implement the 1981 Act and of their admissions in the Green and White Papers and the decision in July 1996 of the Government to draft amending legislation. Despite this acceptance by the Government that the current system of mental health review is in violation of the Convention, no draft amending legislation has been published to date and the Government continue to deny a breach of the applicant’s rights as a compulsory detainee in a psychiatric institution.

Secondly, of the remedies referred to by the Government, the only independent bodies are the High Court and the President of that court. Accordingly, the applicant’s observations focus on the possible procedures before those courts.

Thirdly, he submits that he has never had a review, either on his initial detention nor thereafter, which provided judicial supervision of the lawfulness of his detention appropriate to the kind of deprivation of liberty in question in accordance with Article 5 § 4 of the Convention (De Wilde, Ooms and Versyp judgment, loc. cit., p. 40, § 76 and Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185, p. 13,  § 30). He points out that special procedural safeguards are necessary in order to protect the interests of persons who on account of their mental incapacity are not fully capable of acting for themselves (Winterwerp judgment, loc. cit., p. 24, § 60). Accordingly, for example, those committed to care for mental incapacity should not have to take the initiative in obtaining legal representation before having recourse to a court (Winterwerp judgment, loc. cit., p. 26, § 66). Moreover, the Article 5 § 4 review must provide guarantees enabling an individual to participate effectively in those proceedings and, where questions arise involving the assessment of character or mental state, the patient should participate in the oral hearing (Kremzow v. Austria judgment of 21 September 1993 Series A no. 268-B, p. 45, § 67).

Relying on, inter alia, the above jurisprudence and principles together with the Megyeri case (Megyeri v. Germany judgment of 12 May 1992, Series A no. 235, pp. 11-12, § 22), the applicant contends that the initial and subsequent Article 5 § 4 review should be automatic. The onus should not be on the patient to institute such proceedings given the nature of the reasons for his detention which might have ceased to exist or which might, any day in the future, cease to exist. A patient is confined, may not be aware of his legal rights or of the possibility of High Court applications and there is no procedure by which a patient is so informed. He may not have the resources to retain a lawyer or expert psychiatrists and may not be in a position to give instructions. However, apart from internal medical supervision (which is otherwise insufficient), no such automatic procedure exists. An automatic administrative review board acting judicially and automatically is required as in virtually every other country in Europe and is accepted by the Irish Government in its White paper as necessary.

In any event, the habeas corpus procedure does not comply with other requirements of Article 5 § 4. It does not take place sufficiently speedily (taking weeks or months) given the nature of the confinement and the absence of judicial input in the initial decision to detain. The applicant refers in this respect to his own proceedings. He is not aware of any proceedings which challenge the existence of mental illness warranting confinement except the above-mentioned Gallagher case to which the Government refer. However, the applicant considers that that case supports the contention that habeas corpus is not appropriate for reviewing continued confinement. The dearth of such cases demonstrates the lack of accessibility, suitability and effectiveness of habeas corpus proceedings in determining the continuance of mental illness.

As to proceedings which challenge the domestic lawfulness of the detention, the applicant notes the cases to which the Government refer pointing out that in many of the successful cases the detainees had been unlawfully detained for significant periods of time. The applicant criticises the table of statistics provided by the Government arguing, inter alia, that it does not give any information as to the reasons for such persons’ admission. In many cases it will be for alcohol related illnesses which do not often require long term detention. In addition, the table omits to explain the reasons for those persons’ discharges and how often their detention was reviewed.

The applicant also considers that the reviews are not manifestly available at reasonable intervals and he refers to the length of time it took to complete his own proceedings.

Moreover, the applicant considers that High Court procedures are unsuitable for the review of the detention and of the treatment of psychiatric detainees particularly those detained for lengthy periods. Patients are not aware of the existence of such a procedure. It cannot be said that the review is “available” in any meaningful  sense given the small number of habeas corpus challenges by psychiatric detainees compared to the number of detainees and, if all patients pursued the habeas corpus procedure regularly, it would result in hundreds of applications a year. At the most there are a few dozen applications every year, most of which relate to criminal convictions. By its very nature, the habeas corpus remedy can result in substantial periods of unlawful detention. It is an all or nothing remedy, there being no room for argument as to the type of treatment given which may allow release, supervised or conditional release and outpatient treatment. Moreover, legal aid is not available.

The independence of the President of the High Court is not questioned but that judge has never, to the applicant’s knowledge, used his powers and the Government do not point to any example. In any event, there is no provision for legal representation or for a hearing.

The applicant adds that the court’s consent pursuant to section 260 of the 1945 Act must be obtained prior to the institution of civil proceedings. This can take a significant period of time involving an appeal to the Supreme Court and the applicant

refers to the above-mentioned O’Reilly case in which it took years to conclude (unsuccessfully) the consent proceedings. Obtaining consent is, in any event, rare and, if it is obtained the following proceedings can also take years to complete. The other procedures foreseen by sections 208(5), 218, 219, 220, 221, 222 and 237 are not automatic and, in any event, do not constitute judicial remedies.

 In view of the arguments of the parties, the Court considers that the application raises serious issues under Article 5 §§ 1 and 4 of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits.

Vincent BergerMatti Pellonpää
RegistrarPresident

Full & Egal Universal Law Academy