Answers to these questions are not at the practitioner’s fingertips. Yet to begin to answer them, the extent of the crisis needs to be laid out.
Song for everyone
It is no exaggeration to say that the SM case underscores a wider crisis in our health and penal systems. The first problem is that Irish prisons are inadequately resourced when it comes to caring for mentally unwell prisoners.
The number of people presenting in this group can be startling: in 2019, a total of 887 new referrals across 11 prisons were made to prison in-reach, mental-health teams.
After a visit to Cloverhill prison’s D2 Wing (the country’s largest unit for holding mentally-ill prisoners), the Council of Europe’s Committee for the Prevention of Torture reported that the unit was “overflowing, with seven prisoners having to sleep on mattresses on the floor”. According to the report, which was published in November 2020, medical staff confirmed this was a “regular feature for the landing”.
The second, related, issue is that the Central Mental Hospital – home to the country’s only forensic mental-health service – currently has no room to relieve this inadequacy.
A very insightful perspective on this came from the latest report published by prison chaplains for Cloverhill Prison, who highlighted that it “takes weeks or months to divert a [mentally-ill] man to his local hospital or to the CMH” once imprisoned. The reasons for this are unsurprising.
The CMH only has 102 beds – a number that does not compare favourably internationally. A 2019 report by the HSE disclosed that Ireland has only two secure forensic beds per 100,000 population, while most modern European states have in excess of ten.
Outside the CMH, the mentally-ill in custody are cared for by in-reach teams who, it must be said, do the best they can with limited resources
Rusty cage
Given these facts, criminal solicitors may more frequently have to resolve capacity issues in the future. Yet the legal landscape is also in flux. With the enactment of the Assisted Decision-Making (Capacity) Act in 2015, the law has properly evolved from a black-and-white view of capacity to one that recognises a spectrum – although the bulk of this act has yet to be commenced.
Still, the degrees of capacity that it recognises fully translate into the custodial context. On one hand, some clients in custody engage with solicitors from prison, even if diagnosed of unsound mind.
On the other, some deteriorate to a level where contact with their solicitors stops entirely. We should add, however, that for this group, contact often just becomes indirect because a phone call or email may still issue from prison health services and, when this occurs, solicitors on record may require guidance on their options.
There is currently no ad hoc guidance for solicitors called to assist the mentally ill in custody, so practitioners must start with general guides. The Guide to Good Professional Conduct for Solicitors is an especially important resource, but it still only offers broad principles for dealing with mentally unwell clients.
A few Law Society practice notes add particular guidance: for example, the December 1998 note on advising clients of unsound mind suggests taking “reasonable steps to ensure the client’s interests are protected”.
The note then suggests contact with relatives, medical professionals, and the Wards of Court office – although it ominously concludes that the “solicitor’s duties are at an end” once this is done.
Just what these ‘reasonable steps’ may entail, and whether withdrawal is even ethical for a solicitor in the context of a mentally-ill client in custody, are just two of the questions that arise from the 1998 note, but there is also a sense that the law has moved on considerably since.
For example, pursuant to the Mental Health Acts, legal representatives are now specifically authorised to act on behalf of clients on Mental Health Tribunals, although this is hardly analogous to representing a detained person.
In another area, some solicitors are not infrequently asked to act as guardians ad litem in ward-of-court proceedings, and there they take on the role of being a voice of the intended ward.
Time of the preacher
Specific guidance is needed, because the general guides currently fail to take account of the unique characteristics of detainees as clients.
The chaplains of Cloverhill Prison express it well: “Many of the [detainees] grew up in the care system, spent their lives living in homeless accommodation or psychiatric hospitals, and have no appropriate support in addressing their social needs.”
Therefore, in cases where the mentally-ill person in custody is homeless and without any next of kin, the solicitor on record may be that person’s only advocate outside the prison walls. If that prisoner’s health declines urgently, prison nurses and doctors may have nobody else to call.
In the absence of specific guidance, charting a course if that call comes means that solicitors rely on a mixture of existing professional principles, legal knowledge and, it must be said, their own creativity as conscientious citizens.
It goes without saying that the solicitor should always attempt to take instructions as a first step. After all, the detainee’s mental capacity may fluctuate, and he or she may possess sufficient capacity for some instructions.
Obviously, however, in cases of significant decline, giving instructions may be impossible. Added to this is the fact that, in the current health emergency, taking instructions with clients in custody presents unique challenges.
Of course, family members may be able to assist but, as noted, homeless detainees may often be without any worldly moorings.
Where instructions are sparse, the most common reflex for criminal practitioners is to go to court. However, options tend to change depending on urgency and prisoner status. In non-urgent cases, and where the prisoner is on remand, we have found that it is best to inform the court of trial as soon as possible.
For example, if a client has a pending matter in the Circuit Court, it is recommended to have the matter listed for mention in early course. In such cases, the court will routinely make recommendations for appropriate care in prison; and psychiatric reports between court appearances and beyond.
The necessity of a fitness-to-plead hearing may then arise, although we cannot, in this brief article, explore that particular avenue.
In this river
In urgent cases, these steps may not be enough. If a remand warrant is in place, the possibility of bail may then be recommended. The problem here is that, if a court is minded to grant bail, it is our experience that, depending on the level of incapacity, it will usually expect some arrangements for the prisoner’s psychiatric care in the community to be in place.
Yet the viability of this option is much in question. Firstly, if a client is homeless and without family, this requirement puts an enormous amount of pressure on the solicitor to find a therapeutic placement.
More pointedly, release into the community may not actually do much good.
As the Council of Europe committee worryingly reported: “Many of the persons coming to [the D2 Wing] could be granted bail by the courts but, because of their homeless status, they are excluded from Health Service Executive (HSE) community mental-health team services, so they are left to languish in prison.”
Solicitors advising in these cases are also dealing with an absence in community-care places. We asked Fr Peter McVerry (whose services provide invaluable help to criminal solicitors and their clients) to comment, and he had this observation: “Prison is a place of punishment and is not an appropriate environment for mental-health treatment. However, I think some judges get exasperated at the lack of community mental-health care and send people to prison in the belief that they will get better care there.”
Magic carpet ride
More creative court outings may be the next step, but they are not magic solutions either. Indeed, where a prisoner is serving a sentence, avenues narrow considerably.
Take this scenario: a client becomes gravely mentally unwell in prison while serving a sentence, but refuses to take medication. In Ireland, there is currently no possibility of involuntary medication in prison. Therefore, the only option becomes entry into the CMH, which may have a lengthy waiting list. Yet, can a court order this specific relief?
The High Court confronted that possibility in the SM case, although the facts were slightly different to our scenario above. There, the applicant brought a challenge under article 40.4 of the Constitution, seeking an order of habeas corpus for failure to provide appropriate medical treatment and transfer to the CMH.
SM’s personal history shared many of the characteristics of the prison population identified above. Initially remanded to D2 wing on a charge of murder, SM was a young man with a history of psychiatric illness and homelessness.
This did not move the court, however. Refusing relief, the court accepted that if “egregious” cases might still reach the standard for unlawful detention, it had not been met in this case, mainly because SM continued to receive treatment by prison in-reach (although there was evidence this was insufficient).
Spoonful
SM is a consequential judgment, which we cannot fully analyse here. However, a relevant extract of the court’s judgment is worth quoting.
After finding that an order of the kind sought would permit SM to “leapfrog” those ahead of him in the queue, Ms Justice Hyland warned that it might also “have the effect of putting pressure on the executive of expending resources to increase the number of beds in the CMH”.
This the court was not prepared to do: “It is inappropriate that courts make orders that require, either directly or, as in this case, indirectly, the executive to expend resources or to interfere with the operation of hospitals.”
Affirming this decision on 1 April 2021, the President of the Court of Appeal remarked that this was a “resources case”, which was not properly brought under article 40.4.
This brings us to our final point. Whether intended or not, results like the outcome in SM keep solicitors in their role as activists, in the face of an unacceptable resources problem that the courts are essentially powerless to resolve.
Part of the job of assisting clients now entails exerting pressure on those branches of Government with power to remedy acute situations.
For example, we have found persistent correspondence with relevant Government departments and national health authorities to be equally, if not more beneficial, to some clients’ needs – a reminder that raising voices with Government can sometimes be more useful than voicing arguments in court.
Both in terms of resources and the legal landscape, we appreciate that positive developments are afoot in some areas. The expected opening of the new National Forensic Mental Health Service Hospital (with 170 beds) in Portrane offers some hope – although this has apparently been delayed.
The Minister for Justice has also just established a new taskforce to examine the mental-health and addiction needs of prisoners, both during and after their detention. Nevertheless, when it comes to solicitors representing mentally-ill clients in custody, there remains a measurable gap in guidance.
Look it up
Cases:
- SM v Governor of Cloverhill Prison [2020] IEHC 639; [2021] IECA 102
Legislation:
Practice notes:
- ‘Clients of unsound mind’, Law Society Gazette, December 1998, p33
- ‘Legal representation at the Mental Health Commission, guidelines for solicitors – second edition’ (November 2020)
Literature:
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