Friday, June 26, 2015

Migrant Workers - Younis case update


I have previously blogged about the Muhammad Younis case.

In a surprising development yesterday, the Supreme Court upheld Mr Younis's appeal which means that he is now entitled to his award of more than €91,000 (see Irish Times report here). 

As Liam Thornton explains on humanrights.ie, Mr Younis won on the grounds that the High Court had exceeded its jurisdiction in reviewing the merits of the case.

The full Supreme Court decision is available here.  The decision was written by Murray J. (Hardiman J. and Mac Menamin J. concurring).  Mr Younis was supported in his case by the Migrant Rights Centre of Ireland.  Amnesty International made a submission as amicus curiae.

The Supreme Court's views about illegality and employment contracts

While the Supreme Court did not deliver a decision on the merits of the case, it did make strong statements about illegality and employment contracts.  These statements are not a binding part of the case (they are obiter dicta) but they still carry persuasive weight  and may influence future cases. 

At para. 52, the court states: "Traditional judicial dicta, in the older cases in particular, may have to be reviewed or nuanced in the light of the modern regulatory environment, and applied with the principle of proportionality in mind."  (see the fuller quote in Liam's post).

Murray J. continued (para.53):

I would, however, add, even though it is entirely hypothetical, that if the subject matter of the liability to be enforced involved something which was inherently immoral or inherently against the public interests, such as an agreement to rob or to distribute the proceeds of a robbery, then the issue of illegality and public policy would arise from a different perspective. Obviously, that is not the case and unlikely to be the kind of thing which would be attributed to a Rights Commissioner by statute to decide. In this case one is dealing with an inherently lawful subject matter, namely, the relationship of employer and employee, a relationship which the Rights Commissioner, in his Determination, found to exist and give rise to a liability of the applicant. Again, there was no appeal or judicial review of that decision.
So the court is saying firstly that older cases about illegality (which Hogan J. had relied on in the High Court) may need to be reconsidered and secondly that contracts of employment are normally inherently lawful; they are very different from a robbery contract.  The context for the second point is important as it seems to suggest that Judicial Review might be available for a case where a contract was of an inherently immoral nature, but not in the case of an inherently lawful employment contract.  This statement does not preclude further actions concerning illegality of employment contracts provided those actions take forms other than Judicial Review of enforcement proceedings.

The technical issue on which the appeal succeeded

With the benefit of hindsight, it is strange that the case got this far without this technical point succeeding.  To explain the point briefly:  A Rights Commissioner decision was made to award compensation to Mr Younis.  This decision was not appealed or Judicially Reviewed (there appear to have been delays and the time limits are short).  Mr Younis then brought enforcement proceedings (not an appeal) to the Labour Court.  The employer (Mr Hussein) sought judicial review in the High Court of the enforcement decision.  The High Court reviewed the merits of the case, based on the perceived absence of a work permit (although there was not a finding of fact by the Rights Commissioner or Labour Court on this issue), and quashed the Labour Court decision.  The Supreme Court held that the High Court did not have jurisdiction in a judicial review of an enforcement decision to review the merits of the case. 

The lessons for the legal community are clear:
(1) Watch out for time limits; if you do not abide by a time limit for an appeal or judicial review you may be left without a remedy.  Some time limits are very short, e.g. six months for many employment law matters. 
(2) Scrutinise the jurisdiction of a court carefully and revisit the issue of the court's jurisdiction constantly.  Even if the High Court decides the case as if it has jurisdiction, the issue can be revisited in the Supreme Court.

See further:
Migrant Rights Centre of Ireland press release

Video - evidence to Oireachtas Committee on Employment Permits:

http://www.oireachtas.ie/viewdoc.asp?DocID=26613

(Go to 1:26:47)










Seminar on LGBT Rights and Legal Change, TCD, Dublin, Fri. 10 July 2015

Seminar on LGBT Rights and Legal Change

11am - 1pm Friday 10th July 2015, Room 3126, Arts Block, Trinity College Dublin

Speakers: Senator David Norris, Senator Katherine Zappone, Ann Louise Gilligan, Professor Mark Bell (TCD), Brian Sheehan (GLEN).

This is the second in a series of Irish Research Council-funded seminars being run by Prof Ivana Bacik (TCD) and Dr Mary Rogan (DIT), seeking to explore the relationship between legal action and social change. The seminar will begin at 11am promptly, registration from 10.30am. Tea/coffee and lunch provided.

Seminar free but places are limited. To register, please email cicl@tcd.ie.  

Twitter: @CICL15

https://twitter.com/CICL15

Sunday, April 12, 2015

Events in April 2015 and after

CC BY ncarey

I've updated the listings of forthcoming events at www.irishlaw.org/events/.

Here's the current list:


Mon. 13 April 2015:
International conference - Child Protection and the Law, Law Society of Ireland - fully booked
Details at http://www.lawsociety.ie/International_Conference_Child_Protection_and_the_Law%20.aspx

Wed. 15 Apr. 2015:
Digital Rights Europe 2015.  Conference on digital rights issues including privacy, advocacy, security and data protection.
Details at https://www.digitalrights.ie/conference/

Wed. 15    Apr. 2015:       
TJI Seminar Series - Dr Ingrid Samset - 'Peace without prosecutions.  How the amnesty stabilised postwar Angola', Transitional Justice Institute, University of Ulster, Jordanstown campus   
Details at http://www.transitionaljustice.ulster.ac.uk/tji_events.html   

Thu. 16 April 2015:
John M. Kelly Memorial Lecture - Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights, UCD Sutherland School of Law
Details at http://www.ucd.ie/law/eventsseminars/title,231572,en.html

Thu. 16 April 2015:
Are Irish universities committed to Enlightenment ideals? A forum on recent and forthcoming developments in Irish higher education policy and legislation.  Trinity College Dublin.
Details at http://www.cearta.ie/2015/03/a-forum-on-developments-in-irish-higher-education-policy-and-legislation/

Thu. 16 April 2015:
Youth Justice Transformation Conference - Report Launch - ACJRD, Dublin
Details at http://www.acjrd.ie/contents/274

16-18 April 2015:
The Embodied Subject - Northern/Irish Feminist Judgments Project - UCD and Griffith College, Dublin
Details at http://www.feministjudging.ie/?p=1228

Mon. 20 April 2015:
Promoting and Progressing the Rights of Persons from Minority Groups, Maynooth University
Details at https://www.maynoothuniversity.ie/law/events/promoting-progressing-rights-persons-minority-groups

Tue. 21 April 2015:
Investigating human rights violations in the Northern Ireland conflict: has there been impunity? - School of Law, QUB, Belfast
Details at http://www.qub.ac.uk/schools/SchoolofLaw/News/Events/

Thu. 23 April 2015:
Informed Decision-Making for Environmental Law, Policy and Regulation, 13th Annual Law and the Environment conference, School of Law, University College Cork
Details at http://www.ucc.ie/en/lawsite/eventsandnews/title-540526-en.html

Fri. 24 April 2015:
The role of the judiciary in the vindication of human rights - distinguished lecture by Sir Declan Morgan at School of Law, NUI Galway
Details at https://www.facebook.com/photo.php?fbid=10152623122882030

Sat. 25 April 2015:
Mental Health Law Conference 2015, jointly hosted by Centre for Criminal Justice & Human Rights, School of Law, University College Cork and Irish Mental Health Lawyers Association
Details at http://www.ucc.ie/en/ccjhr/events/title-541101-en.html


Mon. 27 Apr. 2015:
Narrative, Power and Commemoration in Conflicted Societies,    TJI Conference,    Belfast  
Details at http://www.transitionaljustice.ulster.ac.uk/tji_events.html   

Thu. 30 Apr. 2015:       
The more things change, the more they stay the same? Socio-economic rights in times of transition,    TJI Conference,    Belfast   
Details at http://www.transitionaljustice.ulster.ac.uk/tji_events.html    

Thu. 30 April 2015:
The Commission's Policy Priorities for the new Procurement Directives, Irish Society for European Law, Dublin
Details at https://www.isel.ie/event/view/103/the-commission-s-policy-priorities-for-the-new-procurement-directives

1-3 May 2015:
Privacy in the 21st Century - A contemporary and Brehon Perspective? Burren Law School. Co. Clare
Details at http://www.burrenlawschool.org

Thu. 7 May 2015:
The Frank Clarke Inaugural lecture - Irish Society for European Law, Dublin
Details at https://www.isel.ie/event
   
Fri. 8    May    2015:
Postgraduate Symposium - Occupation, Transitional Justice and Gender
Belfast campus,    TJI / IRiSS Symposium,    Belfast   
Details at http://www.transitionaljustice.ulster.ac.uk/tji_events.html   

Tue. 12 May 2015:
Commencement of free MOOC on Technology Law  - Understanding the Law in a Digital Age, Law Society of Ireland 
Details at https://mooc.lawsociety.ie  

Mon. 18    May    2015:                   
Dealing with the Past in Northern Ireland: Implementing the Stormont House Agreement.      Conference organised by Amnesty International, the Committee on the Administration of Justice (CAJ), Institute of Conflict Transformation and Social Justice (QUB) and the Transitional Justice Institute (Ulster University), Belfast   
Details at http://www.caj.org.uk/contents/1289

Thu. 21 May 2015:
Annual Review of Important Competition Law Cases and Developments in the EU and Ireland - ISEL, Dublin
Details at https://www.isel.ie/event/view/105/annual-review-of-important-competition-law-cases-and-developments-in-the-eu-and-ireland

21-22 May 2015:
On the Road towards a EU Criminal Justice system: problems, achievements and prospects. Centre for Criminal Justice, University of Limerick.
Details at http://www.ul.ie/law/news/00%5Bnid%5D-forthcoming-conference-centre-criminal-justice

2-4 June 2015:
The State and/of Comparative Law: Juris Diversitas conference, University of Limerick
Details at http://jurisdiversitas.blogspot.ie/2014/12/call-for-papers-state-andof-comparative.html

5-6 June 2015:
Irish Society of Comparative Law conference, University of Limerick
Details at http://irishsocietyofcomparativelaw.blogspot.ie/2014/11/call-for-papers-irish-society-of.html

Fri. 12 June 2015:
Annual  Irish Centre for European Law Procurement Conference, Dublin
Details at http://www.icel.ie/procurement2015

15-19 June 2015:
International Criminal Court Summer School, Irish Centre for Human Rights, NUI Galway
Details at http://www.conference.ie/Conferences/index.asp?Conference=405

22-26 June 2015:
Seventh International Summer School: The UN Convention on the Rights of Persons with Disabilities – Human Rights and Disability-Inclusive Development, NUI Galway
Details at http://www.nuigalway.ie/cdlp/Summer_School_2015/summer_school_2015_info.html

Wed. 24 June 2015:
The Children and Family Relationships Bill 2015 – an overview of the key provisions - Law Society, Dublin
Details at https://www.lawsociety.ie/children-family-law-bill2015.aspx

Fri. 26 June 2015:
International Conference on Wrongful Convictions, Human Rights and Student Learning Experience, Irish Innocence Project, Griffith College Dublin
Details at http://www.innocenceproject.ie  

Fri. 26 June 2015:
Annual  Irish Centre for European Law IT Law Conference, Dublin
Details at http://www.icel.ie/ITlaw2015

Sat. 27 June 2015:
International Wrongful Conviction Film Conference, Griffith College Dublin
Details at http://www.innocenceproject.ie/events/

23-24 Oct. 2015:
Public/Private: Unlocking the Boundaries of Legal Thought, Belfast
Details at http://www.law.qub.ac.uk/schools/SchoolofLaw/News/Title,495213,en.html 

Follow Irish Law Events on Twitter - @irishlawevents 

To receive an e-mail each time a new event is added to Irish Law Events, use this link to submit your e-mail address:  http://url.ie/5zj     




 


 

Thursday, March 05, 2015

Reforming the Mental Health Act 2001

The Report of the Expert Group on the Review of the Mental Health Act 2001 has been published today.  The press release is here.  The full report is available here.  For reaction from Mental Health Reform and Amnesty International Ireland see here. There has been media coverage in the Irish Times, Irish Examiner and on Morning Ireland (interview with Kathleen Lynch). 

As I have meetings and classes today I cannot write a proper blog post yet. 

However, here are some of my tweets.  For more see http://twitter.com/dariuswirl


Darius Whelan retweeted
Katherine Wade @kathwade 
1/1 Guiding principles in Mental Health Act Review are CRC-based with ref to Art 12 and need for consultation and individual care plans.

Darius Whelan @dariuswirl  · 
New mental health leg. to change how people interact with services - @KathleenLynchTD on @morningireland (audio) http://bit.ly/1zNG3uN 

Darius Whelan retweeted
Katherine Wade @kathwade  · Children to have separate guiding principles and presumption of capacity to refuse admission/treatment http://bit.ly/1wJg112  #mentalhealth

Darius Whelan @dariuswirl  · 
Press Release - Minister Lynch publishes Expert Group Review of the Mental Health Act, 2001 #MentalHealth http://bit.ly/1zNzvMx

Darius Whelan @dariuswirl  · 
Group: S.73 should be repealed - (requires permission of the Court before instituting civil proceedings under the Act) #mentalhealth

Darius Whelan @dariuswirl  · 
Group: Introduction of legislation for advance healthcare directives which should apply to mental health equally with general health

Darius Whelan @dariuswirl  · 
Group: Appeal to Circuit Court - onus of proof re mental illness should lie with approved centre rather than person detained

Darius Whelan @dariuswirl  · 
Group: Mechanism to allow information in relation to decisions of Review Boards to be published in anonymised form needed #mentalhealth

Darius Whelan @dariuswirl  · 
Group: Full proposals on ECT. Can continue without consent in limited circumstances #mentalhealth
Embedded image


Darius Whelan @dariuswirl  · 
Group: Children to have a stand-alone section of the Mental Health Act with child appropriate guiding principles #mentalhealth

Darius Whelan @dariuswirl  · 
Group: New intermediate patients - people who may not warrant detention but do not have the capacity to give informed consent - safeguards

Darius Whelan @dariuswirl  · 
Group: Key decisions such as admission of involuntary patients should involve assessment by at least two Mental Health Professionals.

Darius Whelan retweeted
MHReform @MHReform  ·  2h 2 hours ago
Reaction frm @AmnestyIreland & @MHReform to publication of #MentalHealthAct review report: http://bit.ly/1ALBvVT  @morningireland @TodaySOR

Renewal Orders will be for 3 or 6 months only – 12 month orders will no longer be possible. #mentalhealth

Darius Whelan @dariuswirl  · 
Mental Health Tribunals (renamed Mental Health Review Boards) will review detention after 14 days rather than 21 days #mentalhealth

Darius Whelan @dariuswirl  ·  Group proposes ECT without consent only in limited circumstances - and must be approved by a Mental Health Review Board #mentalhealth

Darius Whelan @dariuswirl  · 
Will tweet some points from report of Expert Group on Mental Health Act 2001 (full text received via @juneshannon - thanks!)

Darius Whelan @dariuswirl 
Fast track for laws to ban shock therapy #mentalhealth http:// http://www.irishexaminer.com/ireland/fast-track-for-laws-to-ban-shock-therapy-316085.html#.VPgHNMvZ3b0.twitter




Thursday, February 26, 2015

School Admissions and the Equal Status Act


I have written a short piece for the Irish Times concerning school admissions and the Equal Status Act.  The article has been published here.  I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth. 

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case.  See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority). 

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity

The earlier stages  are as follows:
Commentary on the High Court stage:
  • Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
  • Mel Cousins, "Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel" - http://works.bepress.com/mel_cousins/22
  • Page at Northern/Irish Feminist Judgments Project 
 I previously posted on travellers in County Clare and the Equal Status Act.






Thursday, February 12, 2015

Gender Equality in Promotions

The case of Dr Micheline Sheehy Skeffington, who successfully claimed gender discrimination concerning the senior lecturer promotions process in NUI Galway, has been widely reported in the media.  This case illustrates a number of key aspects of employment equality law, and I am currently discussing it in my Employment Law classes.  The full decision - DEC-E2014-078 - is available here and I would urge those interested to read the case in full.  By way of background, for those unfamiliar with employment equality law, a quick summary of the Irish legislation is here.  Some key principles to bear in mind are the differences between direct and indirect discrimination and the meaning of objective justification in s.22 of the 1998 Act as amended.  The current version of the legislation is here.

There is no need to prove an intention to discriminate under the Act.  Once an employee produces prima facie evidence of gender discrimination, the burden moves to the employer to prove that it did not discriminate.  The ground relied upon need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision.  At the initial stage, the employee is merely seeking to establish a prima facie case. It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.  It has been noted that "discrimination is usually covert and often rooted in the subconscious of the discriminator. …the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution."  (Nevins, Murphy, Flood v Portroe Stevedores - EDA051 - [2005] ELR 282). 

The decision includes detailed discussion of the procedure and scoring in the promotions round in question.  For purposes of my classes, I chose to highlight the following selected aspects (to understand all of these fully, you need to read the full case):
Prima facie evidence of direct discrimination in Sheehy Skeffington case (para. 4.3):
  • No training for interviewers
  • No marking schemes
  • One male promoted even though not eligible 
  • Only one woman on interview board of 7 people
  • Registrar on interview board and involved in appeal
  • Three successful males had less than minimum contact hours 
  • Dr Sheehy Skeffington had supervised more PhDs than anyone else
  • Some males received higher marks for contribution to School, etc., in anomalous manner
 Cumulatively, these were prima facie evidence of discrimination.

The employer provided rebuttals to many of these points (see paragraphs 3.1 to 3.12).  The Equality Tribunal responded to these rebuttals by making various points, which included the following:

  • Statistical evidence showed women had a very low success rate in promotions.  From 2001 to 2009, men had a one in two chance being promoted; women had only a one in three chance.  
  • The female candidate with the most glowing references was unsuccessful and came fourth last
  • Dr Sheehy Skeffington had published well and had a fair record of grant funding   
The Tribunal therefore found that there had been direct discrimination on grounds of gender.

As regards indirect discrimination, the application form for promotions asked people to state when they were on maternity leave or other unpaid leave so that it could be discounted.  The Tribunal dealt with this issue as follows (see para. 4.6) :
  • Males left this bank; Four females filled it in 
  • The three females who left it blank ranked highest  
  • The majority of female applicants drawing attention to their caring responsibilities outside the workplace disadvantaged them against the male applicants  
  • The inclusion of the question on the form was a legitimate aim but it was not appropriate or necessary
The Tribunal therefore also found indirect discrimination.

The tribunal ordered that Dr Sheehy Skeffington be promoted to the post and awarded €70,000 compensation.  It also ordered that the employer conduct a review of its policies and procedures in relation to promotion to Senior Lecturer to ensure that they are in compliance with the Acts with particular reference to the gender ground. A report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year.

Declaration of Interest: I am a male university lecturer.  I have attempted to highlight the grounds on which this case succeeded, for the information of readers of this blog. The employer's perspective is summarised fully in the case, but most of the employer's arguments were rejected by the Tribunal. 

Comments:  This case is best understood in the context of the principles established in earlier case-law, some of which are outlined above and in the full decision.  The Tribunal is not stating that if fewer women than men are promoted this automatically shows discrimination.  But since there were so many defects in procedure and anomalies in scoring, the statistics constituted evidence of direct discrimination.  It is also important to note that it was the cumulative impact of the various defects that lead to the prima facie evidence of discrimination. There will be those who will argue (as some students often do) that defects in procedure should not lead to findings of substantive breach.  However, if this does not happen, then the law is effectively providing a licence to breach procedure and sending a message that such procedures are unimportant.
As regards asking people to state if they had been on maternity leave, etc., this is only a minor aspect of the case and it is debatable whether this would always be discriminatory.  

On a related note, I spent a fascinating two days at the recent feminist judgments workshop here in UCC and look forward to reading the book which will result. 

Media stories on the Sheehy Skeffington case are available by doing web searches such as this








Tuesday, December 30, 2014

Mental Health, Criminal Law and Risk of Harm

Website of the Central Mental Hospital
The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system.

This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post.

The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from 'guilty but insane' to 'not guilty by reason of insanity'.  In order for such a verdict to be reached, the Act requires the following:  

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.


According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013.

Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person's mental health on the day of the act to their health at the time of assessment.  A person's mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person's release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation - the Mental Health Act 2001 - are reviewed more frequently. The law also urgently needs to be changed to remove the "insanity" label from such individuals, a label which is entirely inappropriate and anachronistic. 


Source Materials

Barry Roche - Irish Times coverage  

Muiris Houston in Irish Times

Ralph Rigel - Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O'Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens' Information - Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission


Wednesday, December 10, 2014

Capacity Bill and Prime Time programme


Cross-posted from Irish Mental Health Lawyers Association:


Implications of the Assisted Decision-Making (Capacity) Bill 2013 for Vulnerable Persons in Congregated Settings

Submissions by The Irish Mental Health Lawyers Association on the Assisted Decision–Making (Capacity) Bill were made to the Department of Justice on the 30th of October 2013.

The Prime Time programme aired last night on the treatment of vulnerable persons in the care of the HSE at Áras Attracta highlights the urgent need for the Assisted Decision-Making legislation to be implemented as a matter of urgency. We and other organisations have made submissions in relation to appropriate deprivation of liberty safeguards which we consider should have been included in the Bill. An extract from our submissions are set out below.

We consider that it is necessary at this time, to emphasise that there must be appropriate legal mechanisms in place to ensure there is proper oversight of vulnerable adults in care, who cannot speak for themselves and who are entitled to be afforded their basic human rights. Legal mechanisms such as deprivation of liberty safeguards can serve to shine a light on poor practice and unlawful acts. We also consider that it is of the utmost importance that serious consideration is given to the immediate implementation of the Personal Advocacy Service provisions of the Citizens Information Act 2007. 

EXTRACT FROM SUBMISSION

1.    Reviews of detention of persons who lack capacity admitted to residential centres other than approved centres.
The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre.  This is an issue which arises in residential settings such as nursing homes, social care institutions and centres for people with disabilities.  Ireland is not directly tackling the problem of the "Bournewood gap" and ECHR case-law such as H.L. v UK; Stanev v Bulgaria; D.D. v Lithuania and other cases.

Recommendation
The IMHLA recommends that the Bill should state that if a person is being admitted to any residential centre, this can only occur on a voluntary basis, where the person has capacity to consent to such admission and does consent to such admission.  Capacity to consent should be assessed appropriately. 

Áine Hynes, IMHLA                    Phone 01 6779097

10 December 2014

Full IMHLA Submission on Bill