Murder accused brings legal challenge over ‘arbitrary’ State policy on psychiatric report fees

A murder accused described as having an “extensive” psychiatric history is bringing a legal challenge over a cap on fees the State is prepared to pay for psychiatric reports sought by defendants in criminal cases.

According to the man’s lawyers, the Department of Justice is imposing caps on the number of hours, at €120 per hour, it will approve for defence psychiatric reports while the DPP offers an hourly rate of €184, up to 50 per cent more for prosecution reports.

Senior counsel Brendan Grehan, for the man, said the Department’s position is creating “a major problem” in getting defence psychiatric reports.

Mr Justice Paul McDermott will on Tuesday hear counsel’s application to bring judicial review proceedings challenging the policy of the Department’s Criminal Legal Aid unit.

The development comes after a leading consultant psychiatrist, Prof Patricia Casey, wrote to lawyers last July saying she was withdrawing from criminal legal aid work due to “derisory remuneration” from the State for “this valuable and necessary work”.

Prof Casey said the amount of criminal legal aid work she was being asked to do had risen dramatically in recent years and she had reached a point where the time involved, and level of fees, meant it was “just not sustainable”.

The €120 hourly fee, before tax, paid to her under the scheme does not take into account the complexity of the work, often involving multiple interviews and visits, the emotional energy involved, and the skills and qualifications of those doing it, she said. She remains available for civil legal aid work, Prof Casey stressed.

Separately, last week, Mr Grehan told Mr Justice McDermott his client has “a fairly extensive psychiatric history” and is facing a “fundamental unfairness” due to the Department of Justice’s “arbitrary” policy of capping the fees for defence psychiatric reports.

Mr Justice McDermott had invited the Department to send a representative to the Central Criminal Court to explain the “new policy position” but noted his invitation was not taken up.

In the circumstances, he told Mr Grehan the defence could bring an emergency judicial review application before him on Tuesday to challenge the Department over its position.

Earlier, the court heard fees for “professional witnesses” were cut to €120 per hour due following the 2008 financial crisis and have not been restored.

Mr Grehan said some psychiatrists were prepared to work for that rate but a new development last summer involved the Department insisting on getting an estimate in advance, which it had to approve before a suitable expert psychiatrist could be engaged by the defence.

The psychiatrist in his client’s case had estimated a report would require 25 hours work, at €120 per hour, and was not prepared to get involved otherwise, he said. The Department initially said it would only sanction 15 hours but had since increased that to 20 hours, counsel said. The DPP sanctions a rate of €184 an hour for reports, almost 50 per cent more, he said.

In this case, he hoped someone in the Department “might see sense” and pay the additional €600 to the psychiatrist for the report.

Mr Justice McDermott remarked it was “a bit of a mystery” how the decisions at issue had been reached and said it would be sensible for the defence to bring an emergency judicial review application before his court on Tuesday as he had knowledge of the matter and would ensure its “efficient and speedy treatment”.

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