Irish Court of Criminal Appeal

Judgment Title: D. P. P. -v- B.


BAILII Citation: [2011] IECCA B30

Court of Criminal Appeal Record Number: CC 0109/08

Date of Delivery: 07/04/2011

Court: High Court

JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 7th day of April, 2011

[1] Overview
[1.1] On the 8th March, 2011, I ordered that W.B. (hereinafter referred to as “the defendant”) be detained in the Central Mental Hospital pursuant to a jury finding of not guilty by reason of insanity in respect of a charge of aggravated sexual assault. At the time of making this order, I indicated that I had grave concerns about the adequacy of the treatment the defendant had received during the two and a half year period that he had already been in the Central Mental Hospital and that I would set these concerns out in the course of a judgment.

[2] Factual Background
[2.1] The defendant was tried in the Central Criminal Court on a charge of aggravated sexual assault contrary to s. 3 of the Criminal Law (Rape)(Amendment) Act 1990. The trial took place over two days on the 7th and 8th February, 2011. On the 8th February, 2011, the jury returned a verdict of not guilty by reason of insanity.

[2.2] At the start of the trial, the defendant admitted that at about 1am on the 10th August, 2008, he had forced his way into a security lodge in an industrial estate in County Dublin and locked the door behind him. The defendant had a knife in his hand which he presented to C.D., the male security officer, (hereinafter referred to as “the injured party”) and who he then pushed into the toilet. The defendant put the injured party’s hand on his penis and attempted to force the injured party to masturbate him. This was done on three occasions. The defendant proceeded to take off the injured party’s security tag, shirt and other clothes. The injured party managed to close the toilet door in an effort to keep the defendant away but the defendant ran at the door, kicked it and eventually broke it down. The defendant punched the injured party and put his thumbs into the injured party’s eyes; the injured party recalled the defendant having very long fingernails. The defendant then took off the injured party’s underpants and forced the injured party to smell them and proceeded to take off his own clothes and forced the injured party to touch his penis and he did likewise to the injured party’s penis. The defendant then placed his penis in the injured party’s mouth and kissed the injured party. Thereafter, the defendant performed fellatio upon the injured party and demanded that the injured party scratch the tattoos which the defendant had on his stomach. Following this, the defendant urinated on the injured party’s shirt presenting in a threatening and aggressive manner. The defendant then allowed the injured party to dress himself apart from his underpants or socks. The sexual assault lasted for approximately 35 to 40 minutes. The injured party told the Gardaí that during the course of the assault on him the defendant, on some occasions, appeared to be talking to a window and a sliding door and, on other occasions, to someone who was not there.

[2.3] At this point, in an effort to escape, the injured party convinced the defendant that he was going to his car to get some sweets and he was allowed to leave. The injured party ran away and encountered an individual who brought him to his two colleagues. The defendant had also left the security lodge at this point and the injured party, his two colleagues and the individual went in search of the defendant. The defendant was discovered within the proximity of the industrial park and the injured party approached him. The defendant, while showing and waving the knife, approached the other two security officers and took possession of the vehicle that the security officers had been travelling in and drove off eventually crashing the vehicle into a bus at a local shopping centre.

[2.4] Following the defendant’s arrest at the scene by Detective Sergeant McLoughlin, he was taken to a local Garda Station where he was detained for questioning.

[2.5] Detective Sergeant McLoughlin described the defendant as initially being very aggressive and agitated. He described him as having long painted fingernails, long hair and being unshaven. He said that he gave some very odd and bizarre answers to questions and that his appearance was odd.

[2.6] Apart from the evidence of Detective Sergeant McLoughlin, who had also told the Court and jury of the actions which the accused had admitted, the remaining evidence was given by two consultant forensic psychiatrists attached to the Central Mental Hospital who both gave similar evidence to the Court.

[3] Psychiatric Evidence
[3.1] The remaining evidence in the case consisted of the evidence of two consultant forensic psychiatrists, both attached to the Central Mental Hospital, who both gave similar evidence. Through interviewing the defendant, his sister and mother the following factual background circumstances were elicited by Dr. Paul O’Connell, consultant forensic psychiatrist attached to the Central Mental Hospital. The defendant is a thirty year old male who was born in Poland and is of Romany ethnicity. The defendant received limited formal education and left school aged eight because of his family’s frequent changes of address within countries and between countries including Poland, Germany, Holland and currently Ireland. It appears that the defendant began smoking cannabis when he was sixteen years old and thereafter regularly smoked cannabis and used ecstasy. The defendant had also never engaged in regular employment. The defendant was previously married but is now divorced with no dependants.

[3.2] Dr. O’Connell, on behalf of the defendant, stated that the defendant suffers from paranoid schizophrenia. Dr. O’Connell gave evidence that this was a mental illness characterised by persecutory delusions, grandiose delusions, multimodal hallucinations (including auditory, visual, olfactory and tactile) and disorganised thinking and behaviour. He stated there was evidence of marked negative symptoms of schizophrenia, notably loss of motivation and social isolation.

[3.3] Dr. O’Connell stated that although the defendant had improved to the extent that he had passed the threshold for fitness to be tried he remained seriously ill and that it was appropriate for the defendant to remain as a patient in the Central Mental Hospital.

[3.3] The consultant forensic psychiatrist stated that it was his opinion that the defendant was seriously ill at the time of committing the offence. He said his behaviour at that time occurred in the context of a florid psychosis as evidenced by the bizarre nature of the beliefs and experiences he described and the behaviour observed approximate to the alleged offence while undergoing assessment in Cloverhill Prison.

[3.4] Dr. O’Connell went on to say that the defendant was suffering from a mental disorder as defined in both the Criminal Law (Insanity) Act 2006, and the Mental Health Act 2001, namely paranoid schizophrenia. Paranoid schizophrenia was described as a mental illness which seriously impairs the defendant’s thinking, perceiving, emotion and judgment and his mental function to the extent that he requires care or medical treatment in his interest and in the interest of other persons.

[3.5] It was the expressed opinion of Dr. O’Connell that although the defendant may have known the nature and quality of his actions as suggested by the steps he took to coerce the injured party, it was his opinion that the defendant did not know that what he was doing was wrong and that he was unable to refrain from committing the act.

[3.6] Dr. O’Connell went on to say that if the jury found the defendant not guilty by reason of insanity, that it was his opinion that the defendant was in need of in-patient care in a designated centre.

[3.7] Dr. Stephen Monks, who gave evidence on behalf of the prosecution, confirmed the findings of his colleague, Dr. O’Connell.

[3.8] Following the verdict of the jury, this Court ordered that a report be submitted pursuant to s.5 (3) of the Criminal Law (Insanity) Act 2006 by Dr. Sally Linehan, the consultant forensic psychiatrist currently responsible for the defendant’s treatment in the Central Mental Hospital. In accordance with s.5 (3)(c) of the Criminal Law (Insanity) Act 2006, Dr. Linehan prepared a report with a view to advising the Court regarding the defendant’s current condition and treatment needs.

[4] Relevant Law
[4.1] Section 3 of the Criminal Law (Insanity) Act 2006 provides:-

“(1) The Central Mental Hospital is hereby designated as a centre (in this Act referred to as a “designated centre”) for the reception, detention and care or treatment of persons or classes of persons committed or transferred thereto under the provisions of this Act.

(2) The Minister for Health and Children by order may after consultation with the Mental Health Commission established under section 32 of the Act of 2001, designate a psychiatric centre as a centre (in this Act referred to as a “designated centre”) for the reception, detention and, where appropriate, care or treatment of persons or classes of persons committed or transferred thereto under the provisions of this Act.

(3) Part 4 of the Act of 2001 shall apply to any person who is detained in a designated centre under this Act.

(4) In this section, “psychiatric centre” means a hospital or in-patient facility in which care or treatment is provided for persons suffering from a mental disorder within the meaning of the Act of 2001.”

“(1) Where an accused person is tried for an offence and, in the case of the District Court or Special Criminal Court, the court or, in any other case, the jury finds that the accused person committed the act alleged against him or her and, having heard evidence relating to the mental condition of the accused given by a consultant psychiatrist, finds that—

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or

(ii) did not know that what he or she was doing was wrong, or

(iii) was unable to refrain from committing the act,

the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.

(2) If the court, having considered any report submitted to it in accordance with subsection (3) and such other evidence as may be adduced before it, is satisfied that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, the court shall commit that person to a specified designated centre until an order is made under section 13 .

(3) (a) For the purposes of subsection (2), if the court considers that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and may be in need of in-patient care or treatment in a designated centre, the court may commit that person to a specified designated centre for a period of not more than 14 days and direct that during such period he or she be examined by an approved medical officer at that centre.


(b) The court may, on application to it in that behalf by any party and, if it considers it appropriate to do so, after consultation with an approved medical officer, extend the period of committal under this subsection, but the period or the aggregate of the periods for which an accused person may be committed under this subsection shall not exceed 6 months.

(c) Within the period of committal authorised by the court under this subsection the approved medical officer concerned shall report to the court on whether in his or her opinion the accused person committed under paragraph (a) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre.”

“3(1) In this Act “mental disorder” means mental illness, severe dementia or significant intellectual disability where-

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or

(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.
(2) In subsection (1)—

“mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;

…


4(1) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.

(2) Where it is proposed to make a recommendation or an admission order in respect of a person, or to administer treatment to a person, under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and be entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this subsection.

(3) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.”

“(1) The Review Board shall ensure that the detention of a patient is reviewed at intervals of such length not being more than 6 months as it considers appropriate and the clinical director of the designated centre where the patient is detained shall comply with any request by the Review Board in connection with the review.

….

(5) Where the clinical director of a designated centre forms the opinion in relation to a patient detained pursuant to section 5 or section 203 of the Defence Act 1954 , that he or she is no longer in need of in-patient care or treatment at a designated centre he or she shall forthwith notify the Review Board of this opinion.

….

(8) A patient detained pursuant to section 5 or to section 203 of the Defence Act 1954 , may apply to the Review Board for a review of his or her detention and the Review Board shall, unless satisfied that such a review is not necessary because of any review undertaken in accordance with this section, order that the patient be brought before it, as soon as may be, and shall, having heard evidence relating to the mental condition of the patient given by the consultant psychiatrist responsible for his or her care or treatment, determine the question of whether or not the patient is still in need of in-patient treatment in a designated centre and shall make such order as it thinks proper in relation to the patient whether for further detention, care or treatment in a designated centre or for his or her discharge whether unconditionally or subject to conditions for out-patient treatment or supervision or both.

(9) The Review Board may on its own initiative review the detention of a patient detained pursuant to section 4 or 5 or to section 202 or 203 of the Defence Act 1954 , and subsection (8) or (9), as appropriate, shall apply to such review as if the patient had applied for the review under the subsection concerned.”

“If the court, having considered any report submitted to it in accordance with subsection (3) and such other evidence as may be adduced before it, is satisfied that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, the court shall commit that person to a specified designated centre until an order is made under section 13 .”

[5.3] In relation to (i), the Court must decide whether the defendant is still suffering from a mental disorder. Although the jury findings relate to events that occurred on the 10th August, 2008, and the defendant has been in custody in the Central Mental Hospital since October 2008, it is the view of the two consultant psychiatrists, Dr. O’Connell and Dr. Monks, and the view of the defendant’s current consultant forensic psychiatrist, Dr. Linehan, all of whom are attached to the Central Mental Hospital, that the defendant is still suffering from a mental disorder, that being paranoid schizophrenia, within the meaning of the Mental Health Act 2001. Having considered the evidence adduced before this Court and the report of Dr. Linehan submitted to the Court pursuant to s. 5(3) of the Act of 2006, it is this Court’s view that the defendant continues to suffer from paranoid schizophrenia.

[5.4] Having reached this conclusion in relation to (i), the Court must decide whether the defendant is in need of in-patient care or treatment in a designated centre. The wording of s. 5(2) of the Act of 2006 suggests that a court has a discretion as to the type of treatment that a person in the defendant’s position might be afforded. However, upon examination of this provision and other relevant legislative provisions, it is clear that the Court is constrained significantly by the terms of this legislation. As there is only one designated centre, namely the Central Mental Hospital, this Court has no choice in deciding the nature or format of in-patient care or treatment that may be suitable in relation to this specific individual. The question which is required to be determined by this Court can be reduced to whether the defendant is in need of continuing in-patient treatment or care in the Central Mental Hospital. Furthermore, it must be observed that s. 5 (2) does not provide a statutory basis for out-patient treatment within the definition provided by the Act of 2006. It clearly envisages in-patient treatment only and thus represents a further constraint of the legislation.

[5.5] In considering whether or not the defendant requires further treatment in the Central Mental Hospital, it is helpful to consider the care and treatment that he has received since he was first admitted there in October 2008. This Court has been assisted by the evidence of the two consultant psychiatrists, Dr. O’Connell and Dr. Monks, who gave evidence on the issue as to whether or not the defendant was suffering from a mental disorder at the time of the alleged offences, and then following the jury verdict of not guilty by reason of insanity by the further evidence of Dr. Monks, and in particular, the evidence of Dr. Sally Linehan, who has been the defendant’s treating psychiatrist since May 2009.

[5.6] When asked by this Court what was the cause of the defendant’s schizophrenia, Dr. Monks was of the view that there was a strong genetic predisposition towards the illness, but conceded that in the defendant’s case, there was no known family history of schizophrenia. Dr. Monks went on to say that the use of cannabis by the defendant was a relevant factor in his illness and further told the Court that there was a higher incidence of schizophrenia among emigrants and suggested that this might be a factor in the defendant’s case. The reason for the higher rate of the development of schizophrenic illness amongst emigrants was attributed to two main causes. First, people with a developing schizophrenic illness will be more prone to a nomadic existence and more prone to travelling from their place of origin. Second, emigrants who travel from their country of origin suffer stresses within the new environment because of its unfamiliarity and that could contribute to the development of schizophrenia. Dr. Monks stated that the genetic factor as a cause of the defendant’s schizophrenia could be less than fifty per cent.

[5.7] Dr. Linehan, when asked about the cause of the defendant’s schizophrenia, said that there was more than likely a genetic factor in the defendant’s case which was triggered by substance misuse, and went on to say that to some extent treatment was based on the symptoms and on the biochemical manifestations of the illness. Apart from getting medical assistance to rule out an epileptic component and ensure no structural abnormality in the defendant’s brain, Dr. Linehan had not consulted with any other colleagues outside the Central Mental Hospital concerning the appropriate treatment for the defendant.

[5.8] When asked whether or not she thought the defendant might have a problem with his own sexual identity, Dr. Linehan said that this had occurred to her and that this would be addressed with the defendant in future in relation to looking at his offending behaviour.

[5.9] In the course of his evidence during the trial, Dr. O’Connell, who was the defendant’s treating psychiatrist from the time of his admission to the Central Mental Hospital in October 2008 until May 2009, when Dr. Linehan took over, told the Court about the defendant’s resistance to taking Clozapine and how this was overcome. According to a report of Dr. O’Connell furnished to the Court, the defendant did not respond to adequate trials of Olanzapine and Zuclopenthixol, and so in February 2009 he decided that Clozapine should be administered to the defendant. Dr. O’Connell told the Court that Clozapine can cause a leukaemia-type reaction which was potentially fatal, and his report indicated that the defendant did not want to take Clozapine and that the defendant expressed the view that his faith as a Jehovah’s Witness would not allow the blood tests be taken from him which are a necessary part of the Clozapine treatment.

[5.10] Dr. O’Connell stated that the opinion of an independent psychiatrist, Dr. Aideen Moran, was sought by him and that this psychiatrist agreed that the defendant did not have the capacity to give valid and informed consent. Dr. O’Connell stated that extensive work was done by the social worker and the patient’s mother and sister to persuade the patient to allow blood tests. The defendant finally agreed and has been receiving Clozapine since February 2009.

[5.11] Dr. Linehan described other side effects of Clozapine as follows: weight gain, in some cases, considerable; constipation; indigestion and effects on the heart including rapid heartbeat and disruptions to the rhythm of the heart. She said there was an acknowledged increased risk of high blood sugar which could lead to diabetes. Dr. Linehan also noted that the most serious side effect was the one which Dr. O’Connell had described as the leukaemia-type effect and that this was checked by monthly blood tests. Dr. Linehan also told the Court there was an increased risk that the patient would suffer from a seizure while on Clozapine.

[5.12] With regard to the defendant, Dr. Linehan said he had gained quite a bit of weight and had experienced rapid heartbeat, however this was being remedied by other medications. Dr. Linehan told the Court that while she did not understand the exact link that the defendant was making between his wish not to take the medication and his religion, he was fully compliant with the monitoring procedures and had told her that he was satisfied with his medication. Dr. O’Connell also noted that since changing the defendant’s medication to Clozapine, there was a considerable improvement in the defendant’s hygiene and that his affect was noted to be slightly more reactive and his speech a little more spontaneous.

[5.13] Dr. Linehan also mentioned that the defendant had made progress while on Clozapine and believes continued treatment in the Central Mental Hospital will alleviate the defendant’s condition to a material extent. However, this progress, whatever it is, must be read in the light of Dr. Linehan’s assertion in her report of the 7th March, 2011, that the defendant continues to represent a grave risk to others. In an earlier report of the 17th February, 2011, Dr. Linehan stated, at para. 2.3:

“He [the defendant] continues to experience negative symptoms of schizophrenia, including poor motivation and social withdrawal. He does not initiate social interactions and has not developed any meaningful relationships with staff or other patients in the unit. He displays little interest in participating in therapeutic activities. However, with the consistent support of nursing staff he has developed a timetable of recreational activities and engages in these when prompted to do so.”

[5.14] In the course of her evidence, Dr. Linehan told the Court that since taking over as the defendant’s treating psychiatrist, almost two years ago, she has seen him on fifty-five occasions. Dr. Linehan told the Court that these meetings lasted, on average, fifteen minutes except when a particular assessment of the defendant’s mental state was being undertaken and then the meeting would last longer. On these occasions, up to five other people might be present, and on the other occasions, the numbers would vary.

[5.15] Unfortunately, what is clear from Dr. Linehan’s evidence is that she does not see it as part of her function in this particular case to attempt to enter into a meaningful therapeutic relationship with the defendant.

[5.16] All the above matters give rise to a concern as to whether the Central Mental Hospital is the appropriate environment in which the defendant can achieve rehabilitation, let alone the kind of environment that will allow him to flourish as a human being. The emphasis on anti-psychotic medication, with the obvious detrimental effects to his physical health, and the failure by his psychiatrist to enter into a meaningful therapeutic relationship with him, as well as the apparent lack of real interest in the sources of the defendant’s illness, are all causes for concern. Furthermore, the manner in which his initial refusal of Clozapine was dealt with is also a cause for concern. Rather than using the defendant’s refusal as a platform on which to build a real relationship with the defendant, every effort was made to overcome this refusal by enlisting the support of others including family members.

[5.17] This Court notes that there is a huge discrepancy in the protection afforded to patients detained pursuant to the Criminal Law (Insanity) Act 2006 and those admitted to the Central Mental Hospital pursuant to the Mental Health Act 2001. The purpose of both Acts must be such as to strive for the treatment or care of mentally ill persons in our society whether they are being detained in, or admitted to, the Central Mental Hospital. Yet, persons detained pursuant to the Criminal Law (Insanity) Act 2006 are not granted the same protections as those patients admitted to the Central Mental Hospital pursuant to the Mental Health Act; namely there is no requirement for the “best interests of the patient” to be at the forefront of a court’s considerations in making such an order. This, therefore, appears to undermine any requirement for this Court to exercise its role as pariens patriae, pursuant to its inherent jurisdiction, at the sentencing stage. It is another cause for concern that the result of this web of legislative provisions is that once a person is found to be not guilty by reason of insanity for an offence in the criminal law sense, that person can only be detained if he or she has a mental disorder within the civil law sense. So while the person is detained using civil law criteria, he or she does not have the same rights as patients detained under the Mental Health Act 2001. For example, a person admitted as a patient pursuant to the Act of 2001 can only be detained for an initial period of 21 days within which there must be a review by a Mental Health Tribunal. In contradistinction to this, the requirement to review a person detained pursuant to the Act of 2006, on the basis that they have been found not guilty by reason of insanity, arises only every six months.

[5.18] As I mentioned earlier, under the Criminal Law (Insanity) Act 2006, the Central Mental Hospital is the designated centre. It is also noteworthy that s. 3(1) (b) (i) of the Mental Health Act 2001 refers to an “approved centre”. The legislation does not refer to an appropriate or adequate/suitable centre but more precisely an “approved centre”; this further removes any possibility for this Court to consider whether the Central Mental Hospital is appropriate, adequate or suitable for this particular defendant once it is decided that he is in need of further in-patient care or treatment.

[5.19] This Court, in concluding that the defendant is still suffering from a mental illness and is in need of in-patient care or treatment in a designated centre, is thereby obliged to order that the defendant continue his treatment in the Central Mental Hospital. Section 5 (2) provides that, having considered the report and any other evidence and being satisfied that the person has a mental disorder within the meaning of the Mental Health Act 2001, the Court shall commit the person to a centre until an order is made under section 13. Section 5 (2) of the Act of 2006 operates to detain the individual in the Central Mental Hospital until an order is made under s.13 of the Act of 2006. The purpose of the defendant’s detention is for clinical care or treatment. The Review Board must carry out its reviewing function in accordance with the law with due regard to the interests of both the individual detained and the public.