Supreme Court: Central Mental Hospital’s clinical director failed in statutory duty
The Supreme Court has granted declaratory reliefs to a woman who claimed that her constitutional and ECHR rights were breached when the clinical director of the Central Mental Hospital declined to facilitate variations to the conditions of her release.
The court held that she is not entitled to damages for breach of her constitutional rights, but it invited submissions as to whether she is entitled to damages for breach of her rights under the European Convention on Human Rights Act 2003.
In 2002, Ms C, then 27 years old, took the life of her infant son and attempted to drown her young daughter. Having been found guilty of the killing and attempted murder in 2006, she was committed to the Central Mental Hospital with a diagnosis of schizoaffective disorder. Following the enactment of the Criminal Law (Insanity) Act 2006, she was reclassified as a person found not guilty of the crimes by reason of insanity.
The Mental Health (Criminal Law) Review Board, under s.13 of the 2006 Act, reviewed her sentence and, following the 15th review, permitted her release subject to conditions in 2012. The decision as to where Ms C would reside remained vested in Dr Helen O’Neill, consultant forensic psychiatrist.
The Review Board later decided in 2013 that Ms C could decide her own place of residence and directed Professor Harry Kennedy, the clinical director of the Central Mental Hospital, to assess and confirm the making of certain arrangements to facilitate the proposed variation, and to supervise and enforce the revised conditions going forward. He declined to do so.
Ms C sought judicial review. Before her case came before Mr Justice Robert Eagar, the Review Board had unconditionally discharged her. As a result, she no longer needed to pursue mandamus or certiorari reliefs. She continued her prayers for declaratory relief, and for damages for breach of her constitutional rights and ECHR rights. The High Court dismissed the proceedings as moot, and the Court of Appeal agreed.
She appealed to the Supreme Court.
Ms C responded very well to her treatment and was living an “orderly and full life” with her husband and children in their home at the time of the appeal: “She has, it should be noted, a very good relationship with her daughter, whose life she attempted to take in 2002.”
The court had to consider whether the prayers for declaratory relief and damages were moot. Ms Justice Marie Baker considered the judgment of Mr Justice William McKechnie in Lofinmakin v Minister for Justice  4 IR 274, that the question is whether there remains a live controversy between the parties before the proceedings came on for hearing, and not merely theoretical.
The judge found that the fact nominal damages are appropriate does not make the proceedings moot, citing Simpson v Governor of Mountjoy Prison  IESC 81 and Kearney v Minister for Justice  1 IR 116. She said that it was difficult to see how proceedings claiming that ECHR rights have been violated could be moot, citing the European Court of Human Rights judgment in Biržietis v Lithuania, No. 49304/09, 14 June 2016.
She noted the judgment of Mr Justice Frank Clarke in Omega Leisure Ltd v Barry  IEHC 23 that declaratory relief is “by its very nature… a discretionary relief and involves a jurisdiction which must, therefore, be circumspectly exercised and in accordance with the circumstances of the case.” She agreed with the dicta of Mr Justice Gerard Hogan in XA (An Infant) v Minister for Justice  IEHC 397, that the judicial branch of government must ensure that fundamental rights protected by the Constitution “are to be taken seriously” so that they be given “life and reality”.
She found that the proceedings were not moot. On the doctrine of de minimis non curat lex, that the law will not concern itself with trifles, she disagreed with the Court of Appeal: “I cannot agree that the claim by Ms C that her rights were breached is itself insubstantial, tenuous, or minimal.”
Ms Justice Baker said the Clinical Director was wrong to refuse to follow the direction of the Review Board, which is an independent body under s.11(2) of the 2006 Act (as amended by the Criminal Law (Insanity) Act 2010 s.6). The board’s decisions are final and may only be challenged by judicial review. His actions “fall, quite clearly in my view, within the recognised category of misfeasance in public office or breach of statutory duty: the Clinical Director failed to take steps required of him by the statutory regime…” She held that the court would declare the legislation required the Clinical Director to follow that direction and that he failed to perform his statutory duty.
While claim for damages can lie for breach of constitutional rights as per Meskell v Córas Iompair Éireann  IR 121 and Kennedy v Ireland  IR 587, a claim for damages for breach of constitutional rights may be maintained only if established nominal torts do not provide an effective remedy. Blehein v Minister for Health  IESC 40 “unequivocally sets the parameters for when a claim may be brought for breach of constitutional rights.”
The element of mala fides could not be established on the facts, and therefore while a cause of action exists, Ms C was not entitled to frame her action as one for breach of constitutional rights as she had an effective remedy at common law. The judge said that a “robust cause of action exists, but she cannot bring the facts of her case within the elements of that cause of action. She is in no different situation than she would be were she to have pleaded negligence and failed to show on the facts that a duty of care was owed to her or was breached by reason of an absence of the necessary nexus required to establish the tort of negligence.”
“It is not the remedy that is defective, but rather the facts do not meet the elements of that remedy.”
Ms C “suffered an indignity and the loss of the community of her husband and children which was unnecessary, unlawful, and caused her distress and upset. By reason of her illness she is a vulnerable person.” As the Supreme Court held in Carmody v Minister for Justice  1 IR 635 that claims under the 2003 Act should be heard after constitutional claims, the Court invited the submissions of counsel as to whether she is entitled to damages for a breach of her ECHR rights.
© Irish Legal News Ltd 2020