Habeas corpus application dismissed as prisoner withdrew proceedings after parties reached private settlement.

Neutral Citation [2013] IEHC 33

The High Court

Habeas Corpus

2013 SSP 1

Between

Michael Byrne

Applicant

And

The Governor of Mountjoy Prison

Respondent

Judgment of Mr Justice Charleton delivered on the 28th of January 2013

The applicant has applied to be released from prison under article 40.4.2 of the Constitution. He claims that his medical condition is

critical and that the response of the prison authorities is so inadequate as to endanger his health to the point of putting his life in

peril.

The applicant was convicted of manslaughter and sentenced to 6 years imprisonment from 31 July 2009. He is due for release in early

2014. This application follows on a previous judicial review application made by him against the same respondent and it has the record

number 2011 924JR. That application was on substantially the same grounds. It ended when the applicant withdrew his proceedings.

The applicant describes that case as having been put on "temporary hold".

A person confined to prison, whether on remand or under sentence, is obliged to suffer the deprivations that necessarily follow from

that loss of liberty but is entitled to reasonable medical attention such that will enable him or her to be treated for whatever physical

or psychological condition that would be treated were the person at large in the community. Clearly, a prison is not a health clinic and

the governor of a place of detention is not obliged to provide any superior level of care than that which an ordinary person who is not

imprisoned would be able to obtain from the health services either through their own efforts or, if they are disabled from seeking help,

through their relatives or friends. While the standard is that of reasonable care, a failure by prison authorities to positively engage in

seeking appropriate treatment for sick prisoners might in an extreme context remove from the condition of confinement its essential

character of legality. A person in custody is entitled to medical attention appropriate to their condition in the context of

imprisonment.

The applicant complains a number of matters. He has sought to be removed from Mountjoy Prison, where it has been confined since

the start of his current sentence, and transferred to an open prison. This, he says, will improve his condition and allow access to his

relations. The governor has worries about such a transfer in the context of the circumstances that led to the commission of the

offence for which he is imprisoned. I have made enquiries into that issue and am satisfied that the attitude adopted by the governor

is not unreasonable and is within his powers as defined by the Prison Rules.

The main complaint of the applicant is in relation to his medical condition.

There is no doubt that this is serious. He is 41 years of age and has undergone a surgical laparotomy for bladder augmentation which

has resulted in the consequence of adhesions in the bowel and digestive complications resulting from the shortening of that organ as

a result of that procedure. This is known as short bowel syndrome. Among the consequences can be malnutrition resulting from the

malabsorption of food. Foods such as biscuits, chocolate and high-fat foods like crisps, that are a temptation to everyone, are likely

to aggravate his condition and to result in acute constipation. The distressing nature of those symptoms is graphically set out in the

affidavit of the applicant. This condition can also be very painful and requires analgesic medication and laxatives. According to his

immediate treating doctor, the applicant has been facilitated in holding his medication at night in order to manage pain. While in

custody, the applicant has daily access to a general practitioner and a nurse is on duty throughout the day and night while he is in

Mountjoy. Part of the reason for not transferring the applicant elsewhere is that this prison is right beside the Mater Hospital to

which, according to the prison authorities, he has frequently been brought in relation to his problems. Between December 20, 2011

and January 29, 2012 there are said to be 18 documented sets of medical notes from nursing and general practitioner visits. The

applicant also suffers from recurrent your urinary tract infections and the prison authorities say he has received antibiotics

appropriately. The records indicate that the applicant was hospitalised for some days from 23 August 2012 with an obstruction of the

small bowel. This account of events is, however, contradicted by the applicant who claims that the prison authorities are not taking

his medical condition seriously and that he is subject to bullying and deprivation. The absence of an appropriate response, he says

has left him feeling "destitute and desperate". He claims that he has been deprived of analgesic medication and left without sleep

through several nights of "horrific pain". He disputes that painkillers had been left to him to attempt to manage his own condition

during the night-time. A clear issue has therefore been opened between the applicant and the respondent on the question of medical

care.

With the medical condition described comes the need for a special diet. His treating doctor describes his weight as being "stable

without recourse to artificial food supplements." The applicant describes the prison regime as being one of deprivation of proper food

in the context of a deliberate attempt to cause distress to him. He can eat good normal and healthy food and the prison authorities

indicate that this is supplied in abundance; including porridge and meat and vegetables. It is claimed that on occasion the applicant

has, understandably if this it true, come back from a hospital visit with an abundance of crisps and chocolate; thus aggravating his

own condition. Whatever about the truth of this matter, an issue has been opened and contradicted as to the state of the

nourishment of especially challenged prisoners in Mountjoy.

The applicant also suffers from rhinitis pigmentosa. This may result in a progressive and gradual loss of sight. The applicant claims

that his condition is being ignored and that he will end up blind. The authorities in Mountjoy reply that his condition was diagnosed in

the Royal Victoria Eye and Ear Hospital but that the applicant has failed to follow up on treatment that was made available to him

through consequent appointments. To put it mildly, this progressive condition must be distressing to the applicant as the usual outlets

of reading, pool, table tennis and snooker are increasingly closed to him. Given this situation, it is it is difficult to see why he would

not have better access to a computer that has a program for enhanced visibility in aid of people with poor sight. An issue as to

medical treatment related to his sight is also evident.

I am satisfied that there is a contest in this case that cannot be resolved without oral evidence. It is disappointing that the applicant

made the complaints that are now addressed to the Court in a judicial review application that has been allowed to lapse or has been

withdrawn.

There is an issue as to whether the applicant is in lawful custody. Contested complaints have been made against the prison

authorities that:

1) no treatment has been afforded to the applicant for his condition of rhinitis pigmentosa;

2) an insufficient diet has been provided to the applicant in the context of his condition of small bowel syndrome; and

3) an improper level of medical care has been provided to the applicant in the context of that condition.

Within the special jurisdiction that enables prisoners to apply to the High Court for relief, a return should be made on next Wednesday

morning the 30th of January at 10.00 hours in terms of evidence as to the three issues above. The prisoner should also be produced

in court.

The affidavit of the applicant sworn on 17 September 2011, and transmitted to me on 14 January 2013, may be treated as evidence

in this application. A notice to cross examine may, by leave hereby given, be served. The prison authorities may proceed by oral

evidence from the treating doctor, but that can be backed up by medical notes and by reports from other institutions. Any further

oral evidence of the prison authorities as they consider relevant may be appropriate, depending on their approach.

To this judgment should be added an addendum of 4 February. The parties attended at the appointed time. The Court was asked for

time and continued with other hearings. During the morning the Court was informed that certain arrangements were being made for

the care of the prisoner. The court was asked to look at these and approve the details. The Court refused. The function of the High

Court hearing an application for habeas corpus is, as Article 40.4.2 specifies “to order the release of such person from such detention

unless satisfied that he is being detained in accordance with the law”. It is no part of the function inherent in this jurisdiction to make

suggestions as to how a prisoner is to be accommodated or treated. Either he is in lawful custody or he is not. Furthermore, the

function of the High Court is to hear the application and not to hear of any settlement between the parties. If an application for

habeas corpus is withdrawn, there does not need to be a hearing; if parties reach a compromise suitable to them and all are now

agreed that a person is lawfully detained thereby, there must still be a hearing but that hearing does not need to be lengthy. Once

the application for habeas corpus is made, then under the Article, it becomes the function of the High Court to “forthwith enquire into

the complaint”. That function is not to be ceded to the parties but must occur once an application for habeas corpus remains before

the High Court.

In the result, after hours of discussion, the parties indicated that they had reached certain arrangements and that the application for

habeas corpus was being withdrawn. The Court noted this without intervention or enquiry and merely allowed a document to be read

and then filed. What arrangements were made is between the parties and the Court noted that since the application was being

withdrawn that the function of the Court was finished.