Irish Law Updates

Tuesday, November 17, 2009

Forthcoming Events

The list of forthcoming Irish Law events has been updated. The full list appears here. To subscribe to the Irish Law site e-mail updates list, fill in the form here. Sample events on the list:

Thu.19 Nov.'09:
Mental Health in Prison - Dublin

Sat. 21 Nov.'09:
Economic, Social and Cultural Rights � Making States Accountable - Annual Human Rights Conference of the IHRC and the Law Society of Ireland, Dublin

Wed.25 Nov.'09:
Constitutional Courts and the Lisbon Treaty - ISEL 7th Annual Brian Walsh Memorial Lecture, Dublin

Thu.26 Nov.'09:
ECHR Update: The Recent Use of the ECHR in the Courts, Procedure, Remedies and Analysis - Dublin

Thu.26 Nov.2009:
A Comparatist�s Analysis of the Convergence of Legal Systems - Dublin

Thu.26 Nov. 2009:
National Asset Management Agency - UCD Commercial Law Centre, Dublin

Fri. 27 Nov.2009:
Assessing Liability in Asset Management - Placing the Legal Principles in their Financial Context - UCD Commercial Law Centre, Dublin

Sat. 28 Nov.'09:
Aspects of Asylum and Immigration Law - The Bar Council of Ireland, Dublin

Sat.28 Nov.'09
Recent Developments in Irish Defamation Law, Including the Defamation Act 2009 - School of Law, Trinity College Dublin, CPD Conference

Mon.30 Nov.'09:
The Intel Decision - ISEL Competition Law Forum, Dublin

Mon.30 Nov.'09:
Launch of IPRT report on Detention of Children - Dublin

Tue.1 Dec.'09:
FLAC Third Annual Dave Ellis Memorial Lecture

Wed.2 Dec.2009:
Land and Conveyancing Law Reform Act 2009 - UCD Commercial Law Centre, Dublin

Thu.-Fri.3-4 Dec.2009:
Police Governance and Accountability, Limerick

Thu.-Fri.3-4 Dec.'09:
Intensive Course on Planning Law (Including Developments on Strategic Infrastructure, Habitats and the New Planning Bill 2009) - Centre for Environmental Law, School of Law, Trinity College Dublin, CPD Course

Sat.5 Dec.'09:
Meeting the Challenges - New Ways of Doing Business. Speakers: K Erwin, Mediators'Institute of Ireland; J Maguire Collaborative Law; P Marrinan Quinn SC Conflict & Dispute Resolution Diploma TCD: T O'Riordan Manager Public Interest Law Project FLAC. Irish Women Lawyers' Association, Dublin.

Sat.5 Dec.'09:
Tort Litigation: Recent Developments - School of Law, Trinity College Dublin, CPD Conference

Fri.11 Dec.'09:
Intensive Course on Waste Law including the New Waste Directive - Centre for Environmental Law and Policy, School of Law, Trinity College Dublin, CPD Course

5-6 March 2010:
Irish Society of Comparative Law Annual Conference, Belfast

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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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Saturday, March 07, 2009

Mental Health Commission Panels

The Mental Health Commission is seeking applications for positions on the panels associated with the operation of Part 2 of the Mental Health Act 2001. The following panels are now open to applications:

  • Chairpersons Mental Health Tribunals
  • Consultant Psychiatrists Mental Health Tribunals
  • Lay Members Mental Health Tribunals
  • Consultant Psychiatrists Independent Medical Examinations
  • Legal Representatives Mental Health Legal Aid Scheme

Closing date for receipt of application is 5.00 pm Friday 20 March 2009.

Information and Forms:

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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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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, September 28, 2007

The Latest from UCC Law Faculty ...

The UCC Law Faculty Newsletter 2007 is now available here.

Forthcoming UCC Centre for Criminal Justice and Human Rights (CCJHR) events are listed here.

These include:

Thanks to Fiona De Londras, the new CCJHR blog is here.

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Sunday, July 29, 2007

Review of Mental Health Act 2001 published

The Department of Health and Children has published a review of the Mental Health Act 2001 which is available at

The review suggests very few changes to the Act, but some interesting points include the following:
  • The Minister accepts in principle that the references to "unwilling" in sections 59 and 60 should be removed, but this will need to be done in the context of any new capacity legislation
  • The Minister accepts that there appears to be a drafting error in section 61
  • As consultant numbers increase consideration should be given to reducing the 14 day time period allowed for in section 17(1)(c)(iii) to receive the second consultant�s report. This would also facilitate the earlier scheduling of Mental Health Tribunals and provide earlier access by patients and their legal advisors to the second opinion reports prior to hearings.
  • When a voluntary patient has a mental disorder and requires involuntary admission for treatment, the use of the normal involuntary admission procedures is preferred. The status of patients should not lightly be changed from voluntary to involuntary, and the rights of patients in this regard must be fully safeguarded. The legal scope for using the normal admission procedures under sections 9 and 10 will be examined.
  • The Act should be amended when a suitable opportunity arises to provide for the closure of approved centres.
  • A monitoring group, consisting of representatives of the Department of Health and Children, the Department of Justice, Equality and Law Reform, the HSE, the Mental Health Commission, service providers and service users should be established to address any difficulties with the Mental Health Act 2001, to oversee the linkages between the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 and to contribute to the development of any proposed capacity legislation.


Thursday, June 21, 2007

Mental Health (Criminal Law) Review Board - new website

The Mental Health (Criminal Law) Review Board, established under the Criminal Law (Insanity) Act 2006, now has a website at [link fixed 22 June'07 12.15 p.m.]

A brief summary of the provisions of the Criminal Law (Insanity) Act 2006 is available on the Citizens' Information website.

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