The Health Minister acted beyond his powers when changing Mount Carmel Hospital’s licence to shift the psychiatric care of inmates to the forensic unit, a court said, in a groundbreaking decree annulling that ministerial decision.

The decree, which revolves around the horrific murder case suspect Abner Aquilina, lays bare legislative and administrative flaws in the system. 

It comes just as the nurses' union ordered its members who work at Mount Carmel Hospital to abandon the ward they are in if Aquilina is moved there.

The matter came to the fore when Aquilina’s lawyers filed an application requesting the Magistrates’ Court to reverse a judge’s decision whereby the youth, who stands accused of murdering and raping Polish student Paulina Dembska, was transferred from the mental hospital to the forensic unit. 

The unit, though accessible through the hospital premises, is a separate entity, legally classified as a “prison” and under the sole control of the prisons director.

The lawyers argued that whereas in hospital Aquilina was receiving adequate treatment and was marking progress, his situation changed when he ended up at the unit which was a “halfway” arrangement between a fully-equipped hospital ward and a prison.

The care offered was not like that at Mount Carmel, the lawyers claimed, calling for the accused’s transfer back to hospital or else to the Corradino Correctional Facility.

The Attorney General objected, arguing that the forensic ward was a “licensed facility” in terms of the Mental Health Act.

But the court said it was “perplexed” by the AG’s arguments and turned them down, upholding the defence’s request and ordering Aquilina back to the hospital which was the only place where he could lawfully be held at this stage. 

How did it all start?

Following his arraignment over the January 2, 2022 murder, Aquilina was remanded in custody after pleading not guilty. 

When the compilation of evidence started, Magistrate Marse-Ann Farrugia raised the issue of insanity and appointed three psychiatrists to assess the accused’s mental state. 

In June last year, those experts reported that Aquilina was insane at the time of the offence, and on the strength of that conclusion, the magistrate ordered that he was to be detained at Mount Carmel Hospital in terms of article 402(4) of the Criminal Code.

That order could only be reversed upon a subsequent report by three psychiatrists, including one responsible for the accused’s care, declaring that he could be discharged from hospital.

However, two months after the Magistrate’s order, while the records of the case were referred to the AG’s Office, Mount Carmel Hospital’s CEO, Stephanie Xuereb, filed an application before the Criminal Court requesting that Aquilina be transferred to the forensic unit. 

That request was upheld by the judge presiding over the superior court and the transfer was effected. 

Why Abner? 

The crux of the issue pivots upon a decision taken in 2019 by the health authorities whereby the hospital was no longer granted a licence to care for inmates with mental health problems. 

From then on, forensic patients were to be detained at the forensic unit. 

When testifying before Magistrate Farrugia, Xuereb explained that although the unit was accessible through the hospital precincts, it was an “autonomous” entity, distinct from the hospital which could not take in “persons under arrest.”

That was why Aquilina had to be transferred to the forensic unit, Xuereb claimed. 

But the evidence put forward “unequivocally” indicated that the true reason behind the accused’s transfer was not that, observed the magistrate.

Why had Xuereb waited for two months before requesting Aquilina’s transfer?

Hospital authorities apparently had no problems with keeping him there in the first place.

Xuereb also admitted on oath that in her three-year experience as CEO that was the only time she had asked for a patient’s transfer.  

Nor did she deny the defence’s claims that there were other inmates being cared for at Mount Carmel Hospital. 

She simply insisted that the hospital “always respected the court’s decision.” 

The CEO was “rather vague” when asked about who had taken the decision to transfer the accused to the forensic unit.

“I didn’t,” was her first reply. 

When pressed further by the magistrate who pointed out that the court application was filed in her name, Xuereb said she did not recall who she had discussed the matter with, simply saying that Aquilina “was causing certain problems with the medical staff and also with fellow patients.” 

But the court would not take that as a suitable explanation.

Mount Carmel Hospital existed “precisely” to cater for persons suffering mental health problems.

“The court would be surprised if the accused, who had been certified insane by three psychiatrists, were not to behave in an unstable manner,” remarked the Magistrate. 

If, in spite of the care given, such problematic behaviour persisted, that “did not mean that the patient was the problem but rather that the care provided was the problem because it was evidently not adequate.” 

And the hospital CEO could not shirk responsibility simply by saying that Mount Carmel lacked the necessary means to monitor forensic patients. 

Once the Criminal Code placed that responsibility upon the hospital, then the relative authorities, including the Health Minister and the CEO, were to ensure that all necessary licences were in place and that human resources were beefed up accordingly. 

A legislative and administrative tangle

Superintendent of Public Health Charmaine Gauci testified about the 2019 licensing setup.

Since then, there is a licence covering Mount Carmel Hospital and a separate licence for the “Forensic Unit (Male Section).”

Gauci said that she lacked information as to where female inmates were currently receiving psychiatric care.

Faced with that testimony, the court concluded that it was to be inferred from the wording of the licence that female patients were cared for at Mount Carmel Hospital.

But when the Health Minister changed the licensing set up, he went against the express provisions of the Criminal Code and the Mental Health Act, two primary pieces of legislation which could not be waived aside by a “simple” administrative decision. 

That decision went beyond ministerial powers and was consequently null and void, irrespective of the standards of care offered and even if standards at the hospital and the unit were at a par. 

Moreover, there were “serious doubts” as to whether Mount Carmel needed a licence under the minister’s hand at all.

Mount Carmel was a government-run hospital, issued a licence under the Medical and Kindred Professions Ordinance.

However, a marginal note in the relative article refers to “private” rather than “public hospitals,” observed the court. 

When all was considered, the court could only order Aquilina’s transfer back to the mental hospital and in terms of the Criminal Code, “Mount Carmel Hospital meant exactly that… and no other mental health facility, even if that was duly licensed according to law.” 

Lawyers Mario Mifsud, Nicholas Mifsud and legal procurator Colin Galea are counsel to the accused.