Irish Law Updates

Thursday, February 19, 2009

Mental Health Act 2001: Unresolved Issues

I've been waiting for the full decision in a mental health case from 31 October 2008 to appear on the website, but there's no sign of it yet. I wrote an article for the Irish Times about this case on 4 November (full text here.)

Here are some extracts from the Irish Times article, with links:

The hasty enactment of the Mental Health Act 2008 ... has probably resolved the legal issues caused by the recent High Court case, but there are other related issues that remain unresolved. Mr Justice Bryan McMahon issued a significant ruling in the case of a woman who has been detained in St Patrick's Hospital since August 2007. Various legal issues arose regarding her detention. ...

[McMahon J. decided that a renewal order for a period not exceeding 12 months was void for uncertainty. However, he put a four-week stay on his order directing the patient's discharge.]

This whole affair raises questions as to the wording of the Mental Health Act 2001, and the forms specified by the Mental Health Commission. As Mr Justice McMahon pointed out, "the error in this case was prompted by the wording of the form used by the Commission". ....

As regards the wording of the Mental Health Act, a number of issues have arisen regarding the time limits, and these have led to the Commission issuing a 1,200-word guidance page on "Duration of Involuntary Admission and Renewal Orders". This guidance will need to be amended in the light of the recent court case. It may now be better to reword the Act so that the time limits operate in a more logical and streamlined manner....

It is noteworthy that a number of other significant issues remain unresolved and require urgent attention. For example, a patient who has their detention renewed for six months (for example), cannot apply to a Mental Health Tribunal for a review of their case during the six-month period, and must wait until the automatic review which will occur at the end of the six months, if the psychiatrist makes a renewal order. This is in spite of a clear ruling from the European Court of Human Rights in Rakevich v Russia in 2003, where it was stated that "the detainee's access to the judge should not depend on the good will of the detaining authority".

The 2001 Act provides that a person may be removed to an approved psychiatric centre by members of staff of the approved centre in certain circumstances (s.13). These "assisted admissions" are often carried out by an independent contractor, rather than members of staff. In the R.L. case in 2008, it was held by the Supreme Court that the use of an independent contractor was a breach of the Act, although the patient's detention was upheld. It appears that such breaches of the Act have continued, in spite of the legal difficulties which they raise.
There are serious doubts about the burden of proof in Circuit Court appeals, where the patient is required to prove that he or she does not have a mental disorder (s.19), even though such a burden would appear to be contrary to the European Convention.

In addition, the powers of Mental Health Tribunals are unduly restricted by the 2001 Act. They may not consider questions of compliance with the sections on removal to the approved centre (s.13), referral of the admission order to the tribunal (s.17), transfer of a patient to hospital (s.22) or compliance with the Mental Treatment Act 1945.

The time has come for a fundamental review of the Mental Health Act 2001 in light of the Irish case law to date, experience in the operation of the Act and recent decisions of the European Court of Human Rights. Reference may also be made to the Mental Health Commission's Report on the Operation of Part 2 of the Mental Health Act 2001 (2008) and the Department of Health and Children's Review of the Operation of the Mental Health Act 2001: Findings and Conclusions (2007).

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Wednesday, December 05, 2007

Frozen Embryos in the High Court

In November 2006 McGovern J. ruled in the High Court that Ireland's constitutional protection of "the unborn" does not include embryos outside the womb.

The full decision is now available on BAILII:
M.R. v T.R. and Others [2006] IEHC 359 (15 November 2006)

The earlier High Court case was
M.R. v T.R. [2006] IEHC 221 (18 July 2006)

Sample News Story:
Legislation prospect after embryo ruling


"The Minister for Health & Children, Mary Harney, has said she had already instructed her Department to begin preparing for legislation in the area of assisted reproduction.

Ms Harney's statement followed a High Court judgment rejecting the case of a woman seeking to have three frozen embryos released to her against the wishes of her estranged husband.

The woman argued that the embryos had a right to life under the Constitution, but the High Court ruled that the protection of the unborn does not include embryos outside the womb.


However, today the High Court concluded that the three frozen embryos are not unborn within the meaning of the Constitution.

Mr Justice Brian McGovern said that it had never been in the minds of people voting on the 1983 Constitutional Amendments on Article 40.3.3 that the unborn meant anything other than the foetus in the womb.

The judge also said it was not possible for the court to decide when unborn life begins - that was not necessary to resolve the issues in this case."

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Monday, November 19, 2007

Transgender Law - Lydia Foy in High Court

As many people will know, the High Court has decided in the Lydia Foy case that it will issue the first declaration of incompatibilty of an Irish law with the European Convention on Human Rights. [update April 2008 - The full judgment is available on the Courts Service website at ]

Sample news stories and blog posts:

"State in breach of ECHR in transgender case

The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago. "

Sex change law incompatible with ECHR:

The Foy Case (CCJHR Blog - Fiona De Londras):

Tanya N� Mhuirthile, Time to respect the rights of all gender identities, Irish Times:

Previous Lydia Foy case:

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Friday, August 17, 2007

Irish Law RSS Feeds

For those who are fans of RSS feeds I've added two new feeds to the Irish Law Site cases page:

  • The IRLII Lastest Irish Cases RSS News Feed
    This feed has been on the IRLII site for quite a while now (about a year?) and is maintained by my colleague John Mee with the assistance of Micheal O'Dowd.

  • The Judgments RSS News Feed
    This is an experimental feed I created using (update 5 October: the feed now uses Unfortunately the headlines consist of the dates of judgments rather than titles, but at least when new judgments are posted on the site they'll show up in your feed reader.

A reminder of two other RSS feeds which we already have:

If you haven't heard of RSS feeds, a brief outline of how they work is available here.

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