THE COURT OF APPEAL
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of the Court delivered on the 1st day of November 2016 by Mr. Justice Edwards.
1. In this case the respondent was charged before the Central Criminal Court upon a 56 count indictment, charging 27 counts of rape and 29 counts of sexual assault against C.C., a female person, at various times between 1994 and 2000.
2. The respondent’s trial was listed before the Central Criminal Court, sitting in Cork, on the 10th of March 2015, and was due to commence on that date, when an issue was raised by the defence concerning his fitness to be tried.
3. Section 4 of the Criminal Law (Insanity) Act 2006 as amended by the Criminal Law (Insanity) Act 2010 (hereinafter “the Act of 2006 as amended”) governs how such an issue is to be dealt with where it arises. In particular, sub-subss. (a) and (b) of s.4(5) of the Act of 2006 as amended provide that “where an accused person is before a court other than the [District] Court charged with an offence and the question arises as to whether that person is fit to be tried” …. “[t]he question of whether the accused person is fit to be tried shall be determined by the judge concerned sitting alone”.
4. Following a trial of the issue as to whether the respondent was fit to be tried conducted on the 10th of March, 2015 before the then presiding judge, sitting alone, the Central Criminal Court determined that the respondent was unfit to be tried.
5. The appellant has appealed to this Court pursuant to s. 7(3) of the Act of 2006 as amended.
The basis of the appeal
6. The appeal is based upon two complaints. First, there is an appeal on the merits against the Central Criminal Court’s said determination. The appellant complains that the presiding judge was incorrect in preferring the evidence of a consultant forensic psychiatrist called as an expert witness on behalf of the respondent to that of a consultant forensic psychiatrist called as an expert witness on behalf of the appellant.
7. Secondly, there is a complaint that the Central Criminal Court judge, having found the respondent unfit to be tried, failed thereafter to follow the required statutory procedure. In particular, it is complained in that regard that the judge was wrong in adjourning the case simpliciter on the 11th of March, 2015 pending further order, without making any order pursuant to s.4(5)(c)(ii) of the Act of 2006 as amended; alternatively, pending the making of such an order, without directing an examination of the respondent by an approved medical officer at a designated centre, and a report from the said approved medical officer concerning the treatment needs of the respondent, pursuant to the provisions of section 4(6) of the Act of 2006 as amended. This secondary ground of appeal therefore raises issues as to the correct statutory interpretation and/or the correct application of subsections (5) and (6) of s. 4 of the Act of 2006 as amended.
8. Following a hearing on the 1st of March, 2016 we indicated that we were not disposed to uphold the first ground of appeal, i.e., the appeal on the merits against the determination of the Central Criminal Court that the respondent was unfit to be tried. However, as regards the second ground of appeal, we indicated that we considered it necessary to reserve judgment. In the circumstances where there was to be a reserved judgment, the Court stated that it would give the reasons for its decision in respect of the first ground of appeal, and its decision and reasons in respect of the second ground of appeal, in the one judgment, which we will now proceed to do.
The appeal on the merits
9. We considered that the appeal on the merits must fail having regard to the decision in The People (Director of Public Prosecutions) v Kelly  IECCA 50 in which the Court of Criminal Appeal adopted for application in the context of criminal appeals the jurisprudence of the Supreme Court concerning findings of fact made by a trial court as laid down in Hay v O’Grady  1 I.R. 210.
10. In The People (Director of Public Prosecutions) v Kelly, McCracken J., giving the judgment of the Court of Criminal Appeal, stated:
11. Dr. Paul O’Connell, Consultant Forensic Psychiatrist, who was called by the defence, and whose evidence was ultimately relied upon by the trial judge, had testified that the accused “had been experiencing a depression in the context of an intellectual disability. Therefore, I regarded him as meeting the definition of a mental disorder having an intellectual disability which is part of the definition and a depression which would also be part of the definition”. Dr. O’Connell went on later in his testimony, and while under cross-examination, to confirm views that he had already expressed in an earlier written report to the effect that, while the respondent was able to demonstrate an understanding of the role of the judge, jury, defence and prosecution, “[i]n my opinion his depression has impaired his cognitive capacity to the extent that he presents with difficulties in appreciating the likely affect of a guilty plea versus a not guilty plea in mitigation” and that he (Dr. O’Connell) was also “not satisfied he grasped the concept of his ability to challenge a juror”. He had further added: “It is possible that with antidepressant treatment his capacity to fulfil the criteria in the act would improve to the extent that he would achieve fitness.”
12. Dr. Conor O’Neill, Consultant Forensic Psychiatrist, who had testified at the behest of the Director of Public Prosecutions, gave evidence that on the single date that he had interviewed the respondent he was not exhibiting symptoms of depression. However, he added: “I would agree with Dr. O'Connell here, that this situation would appear to have fluctuated at different times, for example, in May of last year when assessed by Dr. O'Connell Mr. [B] was assessed as being depressed and I would have no reason to disagree with that. While on the day which I saw him, which is an individual day, I formed the view that on that particular day he was not depressed.”
13. Dr. O’Neill had concluded that the respondent, whom he felt was suffering from an adjustment reaction to significant stresses, manifesting itself in distress, tearfulness and inability or unwillingness to engage with discussions around the offence and the court proceedings, did nonetheless in fact understand “at a basic level what a plea of guilty, not guilty and a plea of not guilty by reason of insanity meant and the implications of those pleas”. While on balance he was of the view that the respondent was fit to be tried he was at pains to emphasise that “such capacity may be impaired at different occasions by depressed mood”, and that “that is not to … disagree with Dr. O'Connell's evidence that he may have been suffering from a depression in the preceding May or at other times”.
14. The trial judge, in a somewhat terse ruling on the issue, concluded: .
15. In her submissions before us, counsel for the appellant conceded that her first ground of appeal rested upon what she characterised as “a narrow plinth”. Her complaint was that there was an inadequate evidential basis for the views put forward by Dr. O’Connell that the respondent was suffering from a depression in the context of an intellectual disability which was operating so as to interfere with his cognitive capacity, and in particular his ability to appreciate the implications of pleading guilty versus pleading not guilty, and also concerning the concept of being able to challenge a juror.
“Very good. Having heard Dr. O'Neill and giving careful consideration to his evidence the only conclusion I can come to is that the burden and thrust of his evidence is that he is not seriously resisting Dr. O'Connell and accordingly I find unfitness.”
16. We have rejected that complaint without hesitation. There was clear evidence given by Dr. O’Connell as to the basis for his conclusion that the respondent had an underlying depression. Moreover, even though Dr. O’Neill did not himself consider the respondent to be depressed, there was no evidence that the suggested depression, if it existed, could not have affected the respondent’s cognitive abilities in the manner apprehended by Dr. O’Connell.
17. Dr. O’Connell’s assessment was based upon a detailed interview with the respondent on the 22nd of May, 2014 contextualised by the results of a cognitive assessment, a collateral history received from the appellant’s mother, and a review of the book of evidence and the memoranda of interviews conducted with the respondent by the Gardaí. It was common case that the respondent has a moderate learning disability. The respondent was in care from the age of two and for much of his life was looked after by COPE, which is a foundation organized to support people with mental disabilities and learning difficulties. It was also common case that the respondent suffers from a number of other adversities, including a speech impediment, and a comparatively rare physical medical condition known as Buerger’s Syndrome which has already led to the amputation of both of his legs, with the result that the respondent is now wheelchair bound, and which may yet possibly lead to the further amputation of his hands.
18. Dr. O’Connell explained the basis for his conclusion that the respondent had an underlying depression in considerable detail. He pointed to the background history, highlighting that there had been a significant restriction in the respondent’s contact with other family members and that he had experienced significant social losses consequent upon the allegations. He stated that “that for anyone can be a risk factor for becoming isolated and depressed”. Dr. O’Connell also pointed to the fact that the respondent’s immediate social support network was threatened due to his foster father’s illness and incapacitation, and the fact that his foster mother had also had concerns for her own health. He also referred specifically to the respondent’s Buerger's syndrome, noting that it had had “a progressive and quite devastating effect on his life”, adding that “[h]aving become a double amputee, as may be expected for anyone who has faced such a devastating loss, that in itself would be a risk factor for depression”. He further explained that although the respondent presented with a naïve bucolic smiley demeanour that did not mean that he was not depressed. A reliable judgment in that regard could not be made on the basis of a superficial view of his mood at the time of presentation. The mood at the time of presentation had to be considered in the context of the patient’s history, and it was necessary to examine that history for signs of clinical depression such as evidence of sleep disturbance, appetite change or weight loss. The collateral history from the foster mother revealed that the respondent had been experiencing problems both with sleeping and with appetite. While accepting that at the time of his assessment the respondent “did not appear to be what one would call clinically depressed”, Dr. O’Connell had felt on balance there was an underlying depression. His evidence in that regard was that “it would not surprise me at all if he were depressed given the change of stressful experiences that he has had physically and socially”.
19. Further, and as stated already, Dr. O’Connell had found the respondent to be distressed and tearful when being interviewed, particularly when he was relying on the book of evidence as a structure on which to ask the respondent a series of questions about the allegations against him. Dr. O’Connell was disposed to attribute this distress and tearfulness to the fact that the respondent was experiencing a depression in the context of an intellectual disability. Dr. O’Neill, who was not present for that interview, but who similarly observed the respondent to be distressed and tearful at the time of his own interview with him, concluded that he was not depressed on the occasion that he saw him, and that he was suffering from an adjustment disorder. However, Dr. O’Neill’s express testimony was that he accepted that the “situation would appear to have fluctuated at different times”, citing by way of example that “ in May of last year when assessed by Dr. O'Connell Mr [B] was assessed as being depressed”. He said “I would have no reason to disagree with that”.
20. When confronted with Dr. O’Neill’s diagnosis of an adjustment disorder, rather than depression, Dr. O’Connell commented that the symptoms manifested in adjustment disorders tended to be time limited (in contrast to depressive illnesses). However, he accepted that “making a definition of depression in someone with an intellectual disability is in itself difficult.” While Dr. O’Connell noted that at Dr. O’Neill’s more recent evaluation the respondent “didn’t present as depressed”, his own position was that “I’m not yet convinced that there is no depression present but the most recent assessment would tend to go against that”.
21. The appellant’s contention that there was an inadequate evidential basis for the views put forward by Dr. O’Connell appears to be based upon a suggestion that Dr. O’Connell’s view was in some way untenable in circumstances where the respondent had not exhibited signs of clinical depression when seen by Dr. O’Neill. It is manifest from the evidence that that is not so. The experts on both sides were deferential and respectful of each other’s views, although they differed in their ultimate conclusions. However, there was far more agreement between them than disagreement, and it seems to us that the trial judge’s comment that Dr. O’Neill was not seriously resisting Dr. O’Connell was justified in the round. Dr. O’Neill certainly did not contend that Dr. O’Connell’s position was untenable. He did not foreclose on the possibility that the respondent does in fact have a co-morbid depressive illness. He could only state that he was not exhibiting symptoms of depression when he saw him, and he was not personally convinced there was a depressive component involved in the distress and tearfulness manifested by the respondent. Equally Dr. O’Connell, although convinced on balance that there was indeed an underlying depression, was utterly accepting of Dr. O’Neill’s evidence that he had not found evidence of clinical depression at his more recent assessment.
22. The views of both experts were tenable on the evidence before the Court. However, to the extent that they were in conflict it was for the trial judge, having heard the witnesses give their evidence first hand, to resolve that conflict as best he could. In doing so he was entitled to prefer the evidence of Dr. O’Connell to that of Dr. O’Neill.
23. For the appellant in this case to have succeeded on the merits she would have to have been in a position to demonstrate that there was simply no evidence capable of supporting Dr. O’Connell’s view. We are satisfied that there was more than adequate evidence capable of supporting his view. We have therefore rejected the appeal against the merits of the trial judge’s ruling that the respondent was unfit to be tried.
The procedural issue
24. Once the trial judge had declared the respondent unfit to be tried, prosecuting counsel submitted to the trial judge that he was obliged at that point, by the combined terms of subsections (5) and (6) of s. 4 of the Act of 2006 as amended, to direct that the respondent should attend a designated centre, either on foot of a committal order, or on a voluntary basis as an out patient, for the purpose of being assessed as to his treatment needs by an approved medical officer, who would then report to the Court, and that pending receipt of the approved medical officer’s report he should adjourn the case until further order.
25. In response, counsel for the defence submitted that the Court was not obliged to seek any such assessment, and that the terms of subsections 5 and 6 of s. 4 of the Act of 2006, as amended, were permissive in that regard rather than directive. Defence counsel further submitted: “I am suggesting that the Court simply adjourns the matter until further order … I would ask the Court to make a recommendation that he should receive whatever appropriate care is required from the adult - the local Adult Mental Health Service for adults with a learning disability, which was the service that was given to me by Dr. O'Connell yesterday when I was talking to him … And I would ask this Court not to refer Mr [B], the defendant, to the Central Mental Hospital. On the evidence of certainly Dr. O'Connell in his report, it is not a suitable place for him in any circumstances whether as an as to be detained in there or whether to be in there for treatment.”
26. It should be noted that Dr. O’Connell in his written report concerning the appellant’s fitness to be tried, which the trial judge had been furnished with (by agreement) in addition to hearing the oral evidence of Dr. O’Connell, had addressed the question of possible disposition in the event of a finding of unfitness to be tried, and had offered certain recommendations. He had stated:
27. Dr. O’Neill had also provided an earlier written report, which again the trial judge had been furnished with (by agreement) in addition to hearing the oral evidence of Dr. O ’Neill, and he had also addressed the issue of possible disposition in the event of a finding of unfitness to be tried. Dr. O’Neill had stated:
28. In ruling on the matter, the trial judge said:
“In the event that Mr [B] were to be found unfit to be tried his physical disabilities are such that he would be at risk in a secure forensic hospital such as the Central Mental Hospital, where the population consists mainly of psychotic young men with significant histories of violence.”
29. It is clear from the submissions made to this Court on behalf of the parties, respectively, that there is disagreement between them as to the correct statutory interpretation of subsections (5) and (6) of s.4 of the Act of 2006 as amended, alternatively concerning how various discretions ostensibly conferred on the trial judge by those provisions ought properly to have been exercised. However, before elaborating further on the parties respective contentions it is necessary to set out the terms of the provisions in controversy.
“I am accepting Ms Fawsitt's submission … And I am adjourning the matter until further order … Simpliciter.”
30. The subsections at issue provide (to the extent relevant):
31. Counsel for the appellant has argued that notwithstanding that the provisions of s.4(5)(c), are, in part, couched in discretionary terms it is in effect mandatory for a trial judge, for the proper exercise of the discretion conferred, to secure appropriate evidence so as to enable the court to exercise its discretion on a fully informed basis. It was contended that it was not sufficient in the circumstances of this case for the trial to adjourn the case simpliciter, particularly in circumstances where he had evidence from Dr. O’Connell that the respondent might possibly improve with antidepressant treatment to the point where he would fulfil the criteria for fitness to be tried. It was submitted that both in the respondent’s own interest but also in the public interest it was incumbent on the trial judge to seek an assessment as to the respondent’s exact treatment needs from an approved medical officer at a designated centre.
32. Responding to this, counsel for the respondent submitted that there was no error in law or in fact by the trial judge.
33. It was submitted that the Act distinguishes between the determination of a fitness to be tried issue and the issue of whether a power under s. 4(6) should be exercised. They are separate processes. It was submitted that it is only upon a determination that the respondent is unfit to be tried that the Court is required to make a decision as to whether it will or will not exercise the power given in s.4(6).
34. The Act of 2006 Act as amended provides, at s. 4(5)(c), that in circumstances where the Court has found the respondent unfit to be tried, the Judge, “shall adjourn the proceedings until further order,…”. Further at s. 4(6)(a) the Act specifically provides that the Court “may commit him or her to a designated centre for a period of not more than 14 days” for the purposes of determining “whether or not to exercise a power under Subsection 3 or 5”.
35. It was submitted that it is only if the Court wishes to consider the necessity of detaining a person found unfit for trial for in-patient or out-patient treatment that the Court is obligated to seek medical evidence. The Act provides for the manner in which this evidence might be obtained by empowering the Court to order the detention for assessment by a designated officer who must then prepare a report for the Court.
36. Section 4(5)(bb), which empowers the Court to request medical evidence, provides separately (in (bb)(ii)) for the fitness to be tried issue and (in (bb)(iii)) for the possible exercise of the power in s.4(6)(a).
37. It was suggested by counsel for the appellant in argument before us that this aspect of the case is concerned with an issue of statutory interpretation, and specifically whether, as the appellant contends, and as the respondent disputes, a judge who has found a defendant unfit to be tried is then obliged pursuant to s. 4(6)(a), and notwithstanding the permissive language used, to commit that person to a designated centre for assessment as to his or her treatment needs.
38. The Act of 2006 as amended is a domestic statute and as such, if indeed it requires construction, it falls to be construed according to the conventional canons or principles governing the interpretation of such statutes. These are for the most part either expressly set out, or otherwise reflected, in the Interpretation Acts 1937 to 2005 and in the jurisprudence of the Superior Courts applying them.
39. The rules in that regard may be summarized as follows. Where a provision is clear on its face it must be given its natural and ordinary meaning. However, where a provision is obscure or ambiguous, or a literal meaning would lead to absurdity, one of two different approaches may be required depending on the nature of the provision at issue. If the provision under scrutiny imposes a penal or other sanction, then it must be interpreted strictly and in favour of the person affected. If, however, the provision does not impose a penal or other sanction then it may be given a purposive or teleological interpretation so as to reflect the intention of the legislature, where that intention can be ascertained from the Act as a whole. Moreover, where there are two possible interpretations of a statute, one of which is constitutionally permissible and the other of which is not, the Court is required to adopt the constitutionally permissible interpretation.
40. In so far as the disposition provisions in subss. 4 (5) and (6), respectively, of the Act of 2006 as amended, provide for possible involuntary committal, whether for assessment purposes or for treatment purposes, we are of the view that as they have the potential to affect the liberty of the individual, it is appropriate to seek to construe them strictly. We hold this view notwithstanding that they are not penal provisions in the narrow sense of that phrase, i.e., provisions that create a sanction or penalty.
41. We are, however, of the view that there is in fact no ambiguity or obscurity in subss. 4 (5) and (6) of the Act of 2006 as amended. If these provisions are afforded their natural and ordinary meanings the intention of the legislature is clear, unambiguous and entirely sensible. Moreover, it cannot be said that a literal interpretation of these provisions would lead to an absurdity. They operate to afford limited powers of disposition to a trial judge enabling him as a matter of discretion to commit certain persons, but only certain persons, who have been found unfit to be tried, for in-patient assessment as to their treatment needs; and to further commit some such persons to undergo such treatment on an involuntary in-patient basis, and to require other such persons to undergo such treatment on an outpatient basis. They are acte clair in so far as this Court is concerned and there is no basis on which to consider any alternative construction.
42. It seems to us that the real issue to be determined in this aspect of the case is not really one of statutory interpretation at all but as to whether these provisions could have been lawfully availed of by the trial judge in the circumstances of the case. The appellant contends that he could have lawfully availed of them and indeed should have done so. The respondent contends that he could not do so. At the heart of the issue is the principle that any statutory power with the potential to prejudice the personal rights of an individual must be exercised constitutionally, i.e., solely within its intended limits and with due regard for any fundamental personal rights of the individual concerned that are not lawfully abrogated by the measure in question.
43. The correct starting point in the present discussion is to acknowledge and recognise that where a person has a physical or mental medical condition it is, in general, no concern of the courts as to whether that person does or does not receive treatment. Every human being has, as a matter of fundamental right, the entitlement to choose to avail, or not to avail, as they see fit, of medical treatment. This freedom of decision making and individual autonomy is an aspect of the right to respect to human dignity. To state the proposition in very general terms, a person with the requisite mental capacity to make such a decision cannot be forced to avail of a treatment that he or she does not wish to receive even if failure to do so would endanger that person’s own life.
44. However, in very limited and highly controlled circumstances the law may permit the Courts to intervene and overrule such personal autonomy. These circumstances arise primarily where the failure to avail of treatment may have safety implications for others or, where the person is considered by reason of mental illness, or other circumstances, not to have the capacity to make a valid decision, such that it is necessary for the State, through the courts, to intervene in a paternalistic way. An example of the former is the power in s.38 of the Health Act 1947 to detain and compel treatment of a patient suffering from a highly infectious disease, the constitutionality of which was upheld in V.T.S. v HSE & Ors  IEHC 106. An example of the latter is Fitzpatrick v K. & The Attorney General  2 IR 7 where the High Court allowed a hospital to administer a blood transfusion to a person who was a Jehovah’s witness against that person’s stated wishes.
45. The issue of possible State intervention to compel medical treatment, and, if necessary, to detain the person concerned to allow such treatment to be administered, perhaps most frequently arises in the context of persons who are considered to be suffering from a mental disorder within the meaning of the Mental Health Act 2001 such that they are either a serious risk to themselves or others, or alternatively lack the capacity to act appropriately in their own best interests.
46. A mental disorder within the meaning of the Mental Health Act 2001 is defined in s. 3 of that Act as follows:
47. In its provisions the Mental Health Act 2001 strives to strike a balance between respecting the personal rights of the individual and the public interest, and it is structured in a manner consistent with what is sometimes referred to as “the least restrictive alternative principle”, whereby possible state intervention, whether it be in the interests of public protection, or in the interests of the welfare of the person concerned, or in the interests of both, is to be approached on the basis that any intervention should be the least restrictive possible in order to achieve the desired objective. This is consistent with the decision of the European Court of Human Rights in Winterwerp v Netherlands  2 EHRR 387 which held that before a person could be detained as a person of unsound mind, the person must in addition to being shown by objective medical expertise to be of unsound mind also be suffering from a mental disorder “of a kind or degree” as to “warrant continuous confinement”.
“(1) In this Act “mental disorder” means mental illness, severe dementia or significant intellectual disability where—
(2) In subsection (1)—
(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.
“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;
“severe dementia” means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression;
“significant intellectual disability” means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person."
48. In the case of a person found unfit to be tried who is suffering from a mental disorder within the meaning of the Mental Health Act 2001 and in respect of whom there is reason to believe that they are either a risk to themselves or others, or alternatively lack the capacity to act in their own best interests, it will be readily apparent to the court that, at a minimum, the person concerned may require appropriate psychiatric treatment, and that consideration must be given to where, and by whom, and in what context they are to be offered, or in an appropriate case required to undergo, such treatment. In theory, and approaching such a case in accordance with “the least restrictive alternative principle”, the options for treatment could include out-patient treatment either at a psychiatric unit or in the community; in-patient treatment on a voluntary basis in an ordinary psychiatric hospital; in-patient treatment on an involuntary basis in an ordinary psychiatric hospital; and in-patient treatment on an involuntary basis in a high security psychiatric unit such as the Central Mental Hospital, Dundrum.
49. If a judge is required to have to choose between these options any such choice should be made on an informed basis, and in order to garner the necessary information to enable the correct decision to be made the obvious first step should, in most cases, be for the judge (assuming just for the moment that he or she has the requisite powers) to direct a medical assessment of the person’s treatment needs and to request that the assessing doctor report in that regard to the court within a defined period of time.
50. However, in order to be found unfit to be tried it is not necessary for a person to be suffering from a mental disorder within the meaning of the Mental Health Act 2001. It is sufficient if, as in the present case, he or she is found to be suffering from a mental disorder within the meaning of the Criminal Law (Insanity) Act 2006, and is unable by reason of that mental disorder to satisfy all of the six requisite criteria for fitness to be tried specified in s.4(2)(a) to (f) of the Act of 2006 as amended.
51. A mental disorder within the meaning of the Criminal Law (Insanity) Act 2006 is defined by s. 1 of the Act of 2006 as amended as including “mental illness, mental disability, dementia or any disease of the mind” but not including intoxication. It is clear that “mental disorder” in the Act of 2006 as amended is broader in its scope than “mental disorder” as defined in the Mental Health Act 2001. In particular, persons suffering from a mental disorder within the meaning of the Act of 2006 as amended, but who are not also suffering from a “mental disorder within the meaning of the Mental Health Act 2001”, may not represent a serious risk to themselves or others, or alternatively lack the capacity to act in their own best interests in so far as decisions as to their treatment may be concerned.
52. It is further important to appreciate that a finding of unfitness to be tried does not necessarily mean that a person is unfit, or lacks the capacity, to take valid decisions concerning whether or not they will seek, and/or avail of medical treatment. The criteria leading to a finding of unfitness to be tried are quite issue specific. Accordingly a mentally ill defendant can be both psychotic and fit to plead. In R v. Berry  66 Cr. App. R. 156 it was said (at p.158) that “a high degree of (mental) abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on”. Conversely, an unfit person would not necessarily require admission to a psychiatric hospital for treatment.
53. The accused in this case falls into the category of a person suffering from a mental disorder within the meaning of the Act of 2006 as amended, but who is not also suffering from a mental disorder within the meaning of the Mental Health Act 2001. Moreover, the evidence before the trial judge suggested that he neither represents a serious risk to himself or to others, nor lacks the capacity to act in his own best interests in so far as possibly availing of medical treatment is concerned.
54. A further nuance to the present case is that the trial judge had evidence that with appropriate medical treatment the appellant might regain fitness to be tried. That this might be so is not perhaps surprising. Writing some 23 years ago on the topic of disposition post a finding of unfitness to be tried, and when the law in that regard was still unreformed and based on s.2 of the Criminal Lunatics Act of 1800, Professor Finbarr McAuley in his seminal work entitled “Insanity, Psychiatry and Criminal Responsibility” (Round Hall: 1993) observed (at p.148) that:
55. It would clearly be in the public interest if the appellant in this case could be administered treatment and returned to a fit state to be tried, but having regard to the appellant’s constitutional and fundamental rights, and approaching the issue from first principles, it is difficult to see how, in the absence of risk to himself or others, or incapacity to act in best interests of his own physical and mental welfare, a judge could have power to intervene to force him to undergo medical treatment, even as an out-patient, or even require him to undergo an assessment as to his treatment needs. However, it is necessary to explore this issue in a little more depth.
“These recommendations [in the “The Henchy Committee Report”] are consistent with the fact that it is now generally recognized that ‘with proper medication and management, most disordered defendants can be restored to competence within six to eight weeks’ … . [a footnote attributes the quotation to Morse, Mentally Disordered Offenders, International Encyclopaedia of Criminal Justice (New York, 1983) 1046 at 1048].”
56. It is necessary at this point to ask: what are the actual powers of disposition given to a trial judge by s. 4 of the Act of 2006 as amended in respect of a person found unfit to be tried; and was it open to, and appropriate for, the trial judge to seek to avail of them in the circumstances of this case, as the appellant suggests he should have?
57. While the judge is given discretionary powers in s. 4(5)(c) to either commit the person concerned to a designated centre for in-patient treatment (under s. 4(5)(c) (i) and applicable only in the case of a person suffering from a mental disorder within the meaning of the Mental Health Act 2001 (the “Act of 2001) ) or to make such order as he or she thinks proper in relation to the accused person for out-patient treatment in a designated centre (under s. 4(5)(c) (ii) and applicable both in the case of a person suffering from a mental disorder (within the meaning of the Act of 2006), and a mental disorder within the meaning of the Act of 2001), those powers may only be exercised where he is satisfied “having considered the evidence of an approved medical officer adduced pursuant to subsection (6) and any other evidence that may be adduced before him or her” that the person has the qualifying medical status and is in need of in-patient or out-patient treatment in a designated centre, as the case might be.
58. As can be seen, it is a precondition to the exercise of the discretion in each case that the judge should have considered the evidence of an approved medical officer adduced pursuant to subsection (6). However, subsection (6)(a) requires such evidence to be based on an assessment conducted by the approved medical officer during the course of a short term committal (not to exceed 14 days) to a designated centre, who following his or her assessment must prepare a report for the court addressing both issues of diagnosis (or at least qualification in terms of the statute, if not a specific diagnosis) and treatment needs. Having regard to how the relevant provision has been drafted, and if it is to be interpreted strictly, it would seem that such an assessment cannot be conducted other than in the course of the prescribed committal, e.g., on an out-patient basis.
59. This is unlikely to present a judge with a problem in the case of a person found unfit who represents a possible risk to either himself or to others. In that situation it may be envisaged that a judge would readily make a committal order under s.4(6) (a) of the Act of 2006 as amended. However, and as has occurred in this case, the judge may well have a problem if it is inappropriate, and contrary to the welfare of the person concerned, to commit him to a designated centre even for the short term assessment period that the Act envisages.
60. It is of significance that the psychiatrists on both sides each counselled the judge against a s.4(6)(a) committal in the event that he was prepared to find the respondent to these proceedings to be unfit, on the basis that it would be contrary to the respondent’s welfare. Dr. O’Connell went as far as to state explicitly that such a step would carry with it “the risk that this exacerbates his mental disorder”, and Dr. O’Neill opining that he would be “at risk” in a place “where the population consists mainly of psychotic young men with significant histories of violence”.
61. Once again, we note that Professor Finbarr McAuley, in the work quoted earlier in this judgment, alluded at that time to “the broadly-based finding that hospitals for the criminally insane are generally ill-equipped for therapeutic purposes and unable to provide the type of treatment necessary for short-term fitness to plead patients”. The evidence from both Dr. O’Connell and Dr. O’Neill in the present case suggests that not much has changed in the interim in terms of the suitability of an institution like the Central Mental Hospital to deal with patients other than those who require to be detained in a high security setting, either in terms of providing an assessment service for such patients, or in terms of providing treatment for such patients.
62. This would not necessarily be a problem if some psychiatric hospital(s) or unit(s), not dedicated exclusively to the treatment of criminally insane or otherwise high risk mentally ill patients who require to be detained in a high security setting, were to be nominated as designated centres for the purposes of the Act of 2006 as amended. However, the sole designated centre at the present time is the Central Mental Hospital in Dundrum. This institution has been expressly so designated by s. 3(1) of the Act of 2006 amended. Although s. 3(3) of the Act of 2006 empowers the Minister for Health and Children to designate additional facilities other than the Central Mental Hospital to act as designated centres, no other facilities within the state have been so designated to date.
63. Moreover, even if a designated centre more suitable than the Central Mental Hospital was available within which to assess, and possibly provide treatment for, the respondent in this case, it still begs the question whether, notwithstanding the wording of s. 4(5)(c) (i) and s.4 (6) of the Act of 2006 as amended, it would be lawful to commit a person who has not been convicted of any offence, who is presumed innocent, who is not suffering from a mental disorder within the meaning of the Mental Health Act 2001, and who is not considered to represent a serious risk of causing harm to either himself or another or others, even on a short term basis for the purpose of assessing his treatment needs. Arguably (and we express no more than a provisional view in circumstances where we are not required to decide this point definitively) for such a committal to be lawful, a committing court would, at a minimum, need to be in receipt of evidence tending to suggest that an effective assessment could only be carried out in circumstances where the person was an inpatient; that any possible assessment on an outpatient basis would, for cogent reasons, not be a viable option; and that the person concerned was unwilling to voluntarily submit to in-patient assessment.
64. In that regard, we note that in his work entitled Mental Health Law and Practice: Civil and Criminal Aspects (2009, Round Hall Thompson Reuters) Dr. Darius Whelan, of the Faculty of Law at University College Cork, points out (at para 17-22) that it has been argued that the power of the court to refer for assessment based on its own view and without a medical assessment may be contrary to the principle in Winterwerp v Netherlands  2 EHRR 387. (Dr. Whelan references Mary Keys, unpublished paper on the Criminal Law (Insanity) Bill, 2002, p.5).
65. In ostensible agreement with this view, Ms. Justice Úna Ní Raifeartaigh, in a paper entitled “The ECHR and the Criminal Justice System” (2007) 2 Judicial Studies Institute Journal 18, published when she was still at the bar, expressed the view (at pp. 29-30) that the powers granted (under s.4 of the Act of 2006 as amended) in relation to disposition following a finding of unfitness to be tried require to be interpreted in an ECHR compliant manner.
66. Be all of that as it may, there is as we have previously stated no designated centre at the present time other than the Central Mental Hospital in Dundrum. Moreover, it is clear from s. 4(6)(a) of the Act of 2006 as amended that a judge is only empowered to send a person found unfit to be tried to that institution for assessment purposes on an in-patient basis. The Act does not provide for it to be done on an out-patient basis, notwithstanding that possible treatment on an out patient basis, post the carrying out of such an assessment, does appear to be contemplated as a possible option. Accordingly, there was no place other than the Central Mental Hospital to which the trial judge could have possibly sent the appellant for assessment of his treatment needs on any compulsory basis (assuming at this point and for the sake of argument that committal for assessment could be lawful on any basis in this particular respondent’s case). It would have been inappropriate to do so in circumstances where the trial judge in this case had express medical evidence, in respect of which the psychiatrists on both sides were in complete agreement, that it would be contrary to the welfare of the respondent to commit him to the Central Mental Hospital even if it was only on a short term basis for assessment purposes. We are satisfied that the trial judge could not lawfully have sought to do so in reliance on s. 4(6) of the Act of 2006, and the appellant is in error in suggesting otherwise. To have done so would have been to expose the respondent to a risk of harm and potentially to breach several of his constitutional rights, and/or rights guaranteed to him under the ECHR, including his right to bodily integrity, his right to liberty and his entitlement, as an aspect of his right to be treated with human dignity and to autonomous decision making in regard to issues relating to his own health.
67. In the circumstances of the particular case, we have concluded that the trial judge had no option but to adjoin the proceedings simpliciter until further order, and therefore we are also unable to uphold the appellant’s second ground of appeal.
68. As the Court has not seen fit to uphold either of the appellant’s grounds of complaint, the appeal is dismissed.