McDowell's last-minute decision spares Central Mental Hospital
Michael McDowell has made a last-minute order establishing a Mental Health (Criminal Law) Review Board in order to stop a constitutional challenge and a civil case against the Central Mental Hospital. By Erik Salholm
Minister for Justice and Law Reform Michael McDowell has given a last-minute order to establish a Mental Health (Criminal Law) Review Board, in order to spare Dundrum Central Mental hospital from civil action.
A High Court case was taken against the hospital by a man who claims his detention there may breach his constitutional right to freedom.
The man, who wishes not to be named, was arrested in Dublin in July and remanded under the Criminal Law (Insanity) Act 2006 to Dundrum, by order of the district court.
Under the act a person can be detained to have their mental health assessed. The person's mental status must be assessed by a review board to establish whether or not they are fit to stand trial. However, at the time of this man's detention, the Minister for Justice had not ordered the establishment of the review board, leaving the period of the man's detention uncertain. He said this was in breach of his constitutional right.
On 26 September, Michael McDowell gave an establishment day order for the Mental Health (Criminal Law) Review Board to take effect the following day. However, this order does not state when the board comes into operation.
A barrister for the man agreed to adjourn the case on 20 September on hearing that the minister would rush through the order for the review board, although he was not bound to do so. He told the court that, although it was irregular, he would agree to adjourn the case because it would allow the man's mental status to be reviewed more quickly. This may now not be the case.
The man could also have sought a review of his case under the 2001 Mental Health Act. Under this act a mental health tribunal can review your case, if you have been detained against your will. However, the mental health tribunals are not in operation yet either.
They are due to start in November – although there is some doubt that they will even meet this start date – so the man in question still had a further five weeks to wait.
The Department of Justice, Equality and Law Reform could not say when the Mental Health (Criminal Law) Review Board would be in operation or who its members would be. The board will review cases of people who have been arrested or are in prison and are deemed to be mentally unstable.
The solicitor representing the man's case said it is a step forward for the many people waiting at the Central Mental Hospital to have their custody reviewed. However, the establishment day order, which came into effect on 27 September, defers dealing with the issue of legal representation at the review board until the board in operation.
At the moment all people facing criminal charges are elegible for free legal aid, however the entitlements of people appearing at a review board remain unclear.