Sunday 15 September 2019

Judges order new laws to protect patients

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Tim Healy

The Court of Appeal has found a key provision of the Mental Health Act 2001 governing the long-term detention of up to 100 people in psychiatric institutions, including 15 patients in the Central Mental Hospital, is unconstitutional.

Because of the "potentially chaotic and catastrophic consequences" of its finding, in that the legal basis for detention of many vulnerable people would "collapse", the three judge court suspended the declaration of unconstitutionality for six months to November 8 so legislation can be enacted.

The finding of unconstitutionality demands an "immediate and imperative response" on the part of the Oireachtas and Government, said Mr Justice Gerard Hogan giving the three judge court's judgment.

The court recognised a finding of unconstitutionality "will have very serious implications for the operation of the 2001 Act and the mental health regime generally".

If affected patients were suddenly released, that "would be likely to have unfortunate consequences for their personal welfare and might well, in some circumstances at least, pose a possible risk to the lives and safety of others".

The court was told 78 patients are currently subject of long-term detention orders while a further 15 patients in the CMH would also be affected.

The finding of unconstitutionality applies to orders extending periods of detention by up to 12 months.


It was made in proceedings against the State brought by a severely intellectually disabled man, aged in his 30s, who despite being deemed to have recovered from a mental illness, was allegedly detained for lengthy periods because the necessary funding for appropriate supported accommodation was not provided for him until last year.

Mr Justice Hogan, with whom Mr Justice Michael Peart and Mr Justice Paul Gilligan agreed, said a section of the Mental Health Act is unconstitutional because it meant there is no effective procedure or mechanism where an involuntary patient detained for longer periods of up to 12 months can seek an independent review within a "reasonable time".

The State has clearly failed in its duty to vindicate the right to personal liberty in breach of Article 40.1, he held. The situation amounted to a breach when read in conjunction with 40.3.1 and 40.3.2, the personal rights provisions of the Constitution.

Irish Independent

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