Irish Law Updates

Wednesday, April 29, 2009

Tipperary Mental Health Inquiry

There have been various media reports recently concerning the report of a Mental Health Commission inquiry into St. Michael�s Unit, South Tipperary General Hospital, Clonmel and St. Luke�s Hospital, Clonmel. (See for example Irish Times ; RT� ; Irish Mental Health Coalition press release).

The inquiry follows a similar report on the Central Mental Hospital in 2006.

The Tipperary report made findings which included the following: A high number of residents have sustained fractures; wards were unnecessarily locked; seclusion was being used too often; patients were forced to wear nightclothes during the day; there were no comprehensive needs assessments or care plans for residents.

A number of legal points arise from the report. For example, it is significant that the Mental Health Commission (press release) has proposed to attach conditions to the continued operation of the two approved centres requiring the Health Service Executive to produce a plan with precise timescales to address breaches in regulations, rules and codes of practice found by the Inspectorate of Mental Health Services during its inspection in late 2008. The Commission would require a quarterly report on the achievement of targets set in the plan.

Under the Mental Treatment Act 1945, the Inspector of Mental Hospitals could issue reports which were critical of mental health facilities, but there was no direct process for requiring improvement in those facilities. The new procedure under the Mental Health Act 2001 contains a process for improvement, by way of attaching conditions to registration, and the possibility of removal of a centre from the register. The CEO has said that the Commission is taking a "graduated response" approach (Annual Report 2007, p.8)

The report also highlights the over-use of locked wards. For example: "Although very few residents were detained under the Mental Health Act 2001 several ward doors were locked and staff referred to residents being �allowed out� or given �parole�, when they should have been free to come and go as they wished." (para.13.1.3)

The problem of de facto detention of "voluntary" patients is as yet unresolved in Ireland. The European Court of Human Rights has found in H.L. v United Kingdom that certain deprivations of liberty of 'informal' patients in England breached Article 5 . Ireland urgently needs new legislation to close the so-called "Bournewood gap", but the scheme of the Mental Capacity Bill contains no proposals on this topic.

As Fergus Finlay rightly said in his RTE Drivetime radio column, if this was a story about animals, it would have exploded all over the news.

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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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Thursday, June 05, 2008

Reforming Laws on Sexual Violence: UCC Event on 27 June

Centre for Criminal Justice and Human Rights
Faculty of Law, University College Cork
Annual Criminal Law Conference
"Reforming Laws on Sexual Violence: International Perspectives"
Friday 27th June 2008

Speakers include:
Judge T Doherty (Special Court Sierra Leone);
Kelly D. Askin (Open Society Justice Initiative);
Madeleine Rees (OHCHR - Bosnia Herzegovina) ;
Doris Buss (Carleton University, Canada);
Fionnuala Ni Aol�in (TJI Uslter / Minnesota);
Penny Andrews (Valparaiso Uni / South Africa);
Amira Khair (ICC Women / Sudan);
Milena Pires (Govt of Timor-Leste);
B. Klappe (Netherlands Defence Academy);
O. Barbour (Irish Defence Forces);
Thomas O'Malley (NUI Galway);
James Hamilton (Director of Public Prosecutions);
Martha Fineman (Emory University, USA);
Nora Owen (Commission for Victims of Crime)

Venue: Aula Maxima, University College Cork
Time: 10.15am- 6.00 pm (Registration and Tea / Coffee from 9.30am)
CPD Group Study 6.5 points
Further details and booking form at:
RSVP: June 20th 2008

This conference is organised with the support of the Department of Foreign Affairs and will be the first event of the Irish Government's Chair of the Human Security Network (

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Friday, May 02, 2008

Report of Commissioner for Human Rights on Ireland

The Report of the Commissioner for Human Rights on his visit to Ireland was just published on 30 April. It includes responses from the Irish Government.

Commissioner for Human Rights, Report by the Commissioner on his Visit to Ireland 26 - 30 November 2007 (CommDH(2008)9, Council of Europe, 2008)

Go to and choose 'Latest Documents'

For a link to the actual report, try this:

[Click the PDF icon if you want a PDF version]

Media report (extract):

Commissioner doesn't pull his punches
Irish Times, 1 May 2008

Ireland's record in looking after vulnerable people is graphically spelt out by the Council of Europe, writes Jamie Smyth, European Correspondent

COMMISSIONER FOR human rights Thomas Hammarberg didn't pull any punches when he presented his report on Ireland's human rights record to the Council of Europe's committee of ministers in Strasbourg yesterday.

His 58-page analysis of Government policy lays bare his office's assessment that the standard of care currently provided to vulnerable groups in society such as children, asylum seekers, Travellers and psychiatric patients is unacceptable.

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Friday, February 08, 2008

Equality and the Sikh Turban Ban

Lord Lester facilitated a fascinating workshop this morning here at UCC on Equality Law, assisted by Colm O'Cinneide.

Among the many interesting points that arose concerning the recent ban on a Sikh turban in the Garda reserve were the following:

  • Could it be argued that a member of the Garda reserve is engaged in an "occupation" (under the Framework Directive 2000/78/EC)

  • Even though the particular person involved has withdrawn from the Garda reserve, could a Judicial Review be brought against the Garda Commissioner's decision?

  • Could a JR application be made by the Equality Authority and/or the Human Rights Commission?

  • If a JR were brought, an argument could be made that the Garda Commissioner's decision applies both to members of the reserve and ordinary Gardai, if need be, in response to any defence relating to the status of members of the reserve.

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Friday, October 05, 2007

Mandatory Life Sentences, the Constitution and the ECHR

RTE is reporting that a challenge to the mandatory life sentence has been rejected:

Challenges to life sentences rejected Friday, 5 October 2007 16:20

"Two convicted murderers have lost their High Court challenge to the constitutionality of the mandatory life sentence for murder.

They are 25-year-old Peter Whelan, who was jailed for life in 2002 for the murder of Cork student Nicola Sweeney, and 30-year-old Paul Lynch, who pleaded guilty in 1997 to the murder of Donegal pensioner, William Campbell.

Each claimed the sentence breached their rights under the Constitution and under the European Convention of Human Rights.

The two men claimed the mandatory life sentence interfered with the role of the judiciary and offended the independence of the judiciary enshrined in the Consitution.

They also claimed their rights under the Convention were breached because they have no way of knowing how or when they are likely to be released.

The case could have had implications for more than 250 people serving life sentences for murder in Ireland.

But Ms Justice Mary Irvine rejected the men's claims on all grounds."

The full story is here.

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