Each year thousands of Irish citizens are detained against their will, without trial. There is no suspicion that any of these have committed any offence. Many are held against their will for years on end, abandoned by their family and friends. While they could seek their release by application to the High Court, most of them would be unable even to initiate that process.
These are people detained under the Mental Treatment Act and, according to the report of the Inspector of Mental Hospitals, 2,726 people were detained involuntarily in 1997. By definition, these people are in an especially vulnerable situation and one would expect the courts and the Inspector of Mental Hospitals to be particularly vigilant to ensure that their rights were not being abused. The Mental Treatment Act 1945 gives certain powers to the Minister for Health, the resident medical superintendent and the Inspector of Mental Hospitals to review the detention of persons involuntarily held under the Act. In addition, there is a statutory obligation on the Minister and on the resident superintendent to discharge a person once the disability that caused his/her detention has ended. Then there is the constitutional right of application to the High Court.
But how conceivably could these measures be sufficient to ensure that the rights of detained persons are protected? There is no obligation under the Act for a periodic, automatic review of the appropriateness of continuing detention and no safeguards against error or abuse. A new Mental Treatment Act in 1981 provided for an automatic review by an independent review board but the Department of Health has not bothered to implement this provision.
In a Green Paper published in 1992 and a White Paper published in 1995, the Department of Health acknowledged that neither the 1945 Act nor the 1981 Act were in accordance with the State's obligations under the UN General Assembly Principles for the Protection of Persons with Mental Illness. It promised new legislation that would provide for an adequate and automatic review procedure by a Mental Health Review Board. Nothing happened.
In spite of all this, the Supreme Court decided three years ago in the Croake v Smith and Others case that the 1945 Act was fine; that the rights of persons detained under the Act were adequately protected.
One of the reasons that the Supreme Court gave for its confidence that the rights of these citizens detained involuntarily were adequately protected was the existence of the office of the Inspector of Mental Hospitals, an office established under the 1945 Act. It is perhaps a pity that the court did not appreciate what has happened this office since it was established 54 years ago.
The 1945 Act required the Inspector of Mental Hospitals to inspect every mental hospital once a year and, in the case of privately run mental hospitals, twice a year. The Act required the publication of an annual report by the Inspector of Mental Hospitals about the conditions in mental hospitals, based upon his inspections. The report was to be laid before both Houses of the Oireachtas and was to be sent to the President of the High Court. The Act was sponsored by the then Minister for Health and Social Welfare, the late Dr James Ryan, one of the finest ministers in the history of the State.
THE point of these sections of the Act was to provide an independent review of conditions in these hospitals - that is, independent of those who ran these hospitals, the hospital authorities, the local hospital or health boards and, of course the Department of Health and the Minister for Health.
Moreover, this was to be done by opening up conditions in these institutions to public scrutiny. What must have been conceived as a fail-safe mechanism was built into these arrangements by providing for the annual reports to be sent to the President of the High Court.
As Ms Annie Ryan recounts in her excellent book Walls of Silence published earlier this year, no annual report of the Inspector of Mental Health was published for a period of 13 years up to 1979 and nobody noticed. Not any member of the Oireachtas, not anybody in the media and not any of the Presidents of the High Court during this time. In 1979, when Mr Charles Haughey was Minister for Health, there was a row over the failure to meet the statutory obligation to publish annual reports. He justified the failure to publish annual reports on the grounds that the practice had "fallen into disuse". Three reports were published together in 1979 and for a further nine years, no reports were published and, again, nobody noticed.
Reports are now published on an annual basis and in early July, I asked the Department of Health when the report for 1998 would be published. I was told it would be published "later in the year". I inquired why this was so since the reports were primarily accounts of inspections of institutions conducted in 1997 and there did not seem any reason why such reports could not have been written at the time of the inspections and the annual report published in March or April each year. After all, the speedy publication of such reports was the best way of ensuring that the public was kept as aware as possible of conditions as they were at the time of inspection and that the agencies responsible for these institutions were kept accountable.
It was not as simple as that, I was told. The official then went on to explain how this supposedly independent report - independent of the Department of Health, of the Health Boards and of the Minister for Health - is compiled.
Once the Inspector of Mental Hospitals has written his version of his own annual report, he sends it to the Department of Health. The Department "edits" the report and returns it to the inspector for his approval. It is then sent to the various health boards around the State for their comments. When these are received, the inspector amends his report. It is sent for a second time to the health boards, and when a response is received from them, the inspector writes a further draft. This is sent to the Minister for his "approval" (that is the word of the spokesperson for the Minister) and when "approval" has been given, the report is sent to be printed.
It is sent again to the Minister, whose consent is required for its publication. This is the independent mechanism that was relied upon, in part, by the Supreme Court in the Croake case when it decided that there were adequate safeguards in the system to protect the rights of the most vulnerable citizens in our community.
The Croake case has now been appealed to the European Court of Human Rights and on June 15th last, the court declared the case admissible because of the serious issues it raises concerning the rights of the citizen.