The Minister of Health and the Bermuda Hospital's Board v Merrick Seaman
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams J |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] SC Bda 62 Civ |
| Docket Number | CIVIL JURISDICTION 2018 No: 211 |
| Court | Supreme Court (Bermuda) |
| Date | 31 July 2018 |
[2018] SC (Bda) 62 Civ
In The Supreme Court of Bermuda
Williams, J.
CIVIL JURISDICTION 2018 No: 211
and
(Represented by his Protective Representative)
Counsel for the Applicants: Mrs. Shakira Dill-Francois (Deputy Solicitor General)
Counsel for the Respondent's Protective Representative: Mr. Ken Savoury (Savoury & Associates)
The Powers of the Court in exercise of its Inherent Jurisdiction Application for Hospital Detention Order Protection from Arbitrary Arrest or Detention (s. 5(1) of the Bermuda Constitution)
JUDGMENT of Shade Subair Williams J
The Respondent was convicted by jury in the Supreme Court on 17 March 2011 on four 1 counts of sexual exploitation of a young person, contrary to section 182A(1)(a) of the Criminal Code. On 30 August 2011, he was sentenced to concurrent terms of 8 years imprisonment without a provision for supervision upon his release. On 2 November 2015 the Crown successfully appealed the sentence and the Court of Appeal imposed a supervision order for a term of three years from the Respondent's release date from prison with a specification for him to comply with the lawful requirements of a probation officer.
While serving this sentence, the Respondent was further convicted in the Magistrates' Court on 21 September 2016 for the offence of wounding contrary to section 306(b) of the Criminal Code. He was sentenced to 9 months' imprisonment to be served consecutively to his 8 year terms.
The Respondent's earliest release date was fixed for 15 June 2018 when he was transferred from the Westgate Correctional Facility to the Co-Ed Facility.
The application before this Court has been made by an Originating Summons seeking an order in exercise of the Court's inherent jurisdiction to detain the Respondent under the Supervision Order in an overseas hospital for medical treatment in respect of his mental health diagnoses which include ‘( DIAGNOSIS REDACTED)’.
At the conclusion of the hearing before me, I reserved judgment and now deliver my decision and reasons below 2.
The Respondent, Mr. Seaman, was produced before the Court and the substantive application was fully heard in his presence.
Under Order 80 of the Rules of the Supreme Court (“RSC”), persons who are incapable of managing and administering their property and affairs by reason of a mental disorder must
The Court accordingly confirmed (NAME REDACTED) as the Respondent's guardian ad litem who I will hereinafter refer to as the “Protective Representative”. RSC O.80/3 (2) states that it is not necessary for the Court to make an order appointing a next friend or guardian ad litem save in respect of exceptions which do not apply to this case. The Protective Representative was present and seated in close proximity to Mr. Seaman throughout the whole of the substantive hearing before me.
The Applicants also sought an order of this Court imposing reporting restrictions on the media to prevent the public disclosure of the Respondent's mental health diagnosis and the identity of his protective representative. I granted the order in these terms on 26 June 2018 and further ordered that the Court file was to be sealed from public access. Additionally, I acceded to the parties' mutual request for the hearing to be held in camera.
The Applicants invite this Court to invoke its inherent jurisdictional powers in sending the Respondent overseas to a hospital facility, namely St. Andrew's Health Care in Northampton, England.
There are no statutory provisions under which the Court may order a person to be detained and medically treated outside of Bermuda. This is the first occasion on which this Court has been requested to make such an order.
On 13 June 2018 the Respondent was transferred under a warrant issued by the Minister directing him to be moved from the prison at Westgate Correctional Facility to the CoEducational Facility at Ferry Reach, St George's (“Co-Ed”). Co-Ed is a designated hospital under the Mental Health (Designation of Hospital) Amendment Notice 2018 which was made on 13 June 2018 when the Respondent was so transferred.
The Court was referred to the affidavit evidence of the Acting Commissioner of Corrections, Ms. Laura Walker, who referred to a number of infractions made by the Respondent during his custodial period. She said that the Respondent used indecent language towards female officers and was found to be in wrongful possession of weapon-type items. On 8 July 2014, the Respondent was reported to have uttered; “ I intend to go on a killing spree when I get out of jail.” This remark led to a further review by a psychiatrist and pharmaceutical intervention.
Ms Walker stated that the Respondent was eligible for parole on 16 April 2013 but that a recommendation report in response to his application for release was to “ be deferred until such time that his offending behavior and the risk to the community have been reduced with the direction of mental health professionals.”
A Psychological Risk Assessment Report (“PRA Report”) was submitted to the Department of Corrections by Dr. Emcee Chekwas on 27 March 2018. This report was exhibited to Ms. Walker's affidavit. While a thin slice of the report was referred to during the hearing, it is worth reciting the larger portion of Dr. Chekwas' findings:
At paragraph 9.2 of the PRA Report, Dr. Chekwas states:
“ Having considered information available to me from Mr. Seaman, assessing him and reviewing his prison medical and psychology files, I concluded that:
He currently presents with a range of psychological and social adjustment difficulties as well as a ( DIAGNOSIS REDACTED) mental health condition that have contributed in the past, and highly likely to increase in the future, his potential for sexual and physical violence.
There was no discernable evidence that Mr. Seaman has any sexual attraction and / or interest for sex with underage. The evidence discovered is that he is indiscreet about his choices of sexual partners and/or what he is prepared to do for sexual gratification. He also presents with poor impulse control which increases his future risk for sexual and physical violence recidivism.
On the balance of evidence I was able to gather I formed the view that Mr. Seaman presents a high risk for future sexual and physical violence against the public. In the event of him offending he is highly likely to cause significant physical and emotional harm to victims.
It is my view that all conventional interventions administered to Mr. Seaman so far have had minuscule impact in improving his presentation and/or reducing his likelihood of reoffending similarly to his sexual offence or violent tendencies. It is also my view that Mr. Seaman requires future mental health interventions markedly different from what he has received so far. In light of his slow response to interventions already completed, future timescales for his recovery is difficult to predict at this time.
He is likely to be best helped if placed in a medium secure forensic unit with specialist staff with ability to evaluate, diagnose and intervene appropriately to help him. His current incarceration in Westgate Correctional facility is merely keeping him in custody but not addressing the risks and needs he presents. The services likely to help him are currently unavailable in Bermuda and even where intervention abroad could be secured he will require long term care. My strong recommendation is that the overseas option highlighted in the medium risk scenario at appendix 5 3 below is pursued for the Public as well as Mr. Seaman's best interests, provided correct legal procedures are in place and followed.”
The Court was also referred to the affidavit and exhibits of the Deputy Director of Public Prosecutions, Ms. Cindy Clarke who outlined the underlying facts to the sexual exploitation convictions. Those facts need not be recited in this judgment.
In Ms. Clarke's affidavit, she stated that the Respondent's mental state was a live issue during the Supreme Court proceedings and that consideration had been given during the sentence hearing to the making of a hospital order under section 33 of the Mental Health Act 1968.
Ms Clarke in her evidence stated that prior to the passing of sentence, Chief Justice Ground (as he then was) ordered reports from two medical practitioners pursuant to section 33(1)(a). Reports from Dr. Grant Farquhar and Dr. Gregory Kerry were produced and reviewed by Ground CJ who in the end decided against proceeding under the provisions of the Mental Health Act.
This Court also considered affidavit evidence from the Permanent Secretary of the Ministry of Health who exhibited an extensive psychiatric report on Mr. Seaman from Consultant Forensic Psychiatrist, Dr. Katina Anagnostakis of St. Andrew's Health Care in Northampton, England, dated 24 May 2018.
Dr. Anagnostakis reported in detailed narrative in a 44-page report her analysis and diagnosis of Mr. Seaman. Her report discloses that she interviewed him and reviewed his background information which was relevant to her diagnostic formulation. Most relevantly, Dr. Anagnostakis confirmed his various diagnoses as “( DIAGNOSIS REDACTED)”.
At page 31 of her report, Dr. Anagnostakis concluded her opinion on Mr. Seaman's diagnosis as follows:
“ In summary, it is my opinion that he suffers with significant mental disorder and that his presentation is accounted for by a complex constellation of symptoms...
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