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).

Monday, February 16, 2009

Joseph Raz lecture at Trinity College Dublin on Wed. 25 Feb. 2009

Irish Jurisprudence Society Annual Public Lecture

Joseph Raz, Research Professor and an Emeritus Fellow of Balliol
College, Oxford and Professor of Law, Columbia University, will
deliver the Irish Jurisprudence Society's first annual public lecture
in jurisprudence on Wednesday 25 February 2009.

The lecture will commence at 7 p.m..

The title of Professor Raz's lecture is 'Innovative Interpretation'

Professor Desmond M Clarke will be chairing this event.

The venue is Trinity College Dublin, in the Lloyd Institute Building
(the Lloyd Institute is near the O'Reilly Institute and beside the new
Science Gallery, for map see:

The lecture is free to attend, but booking is required. Email:

Details of this event are posted on the web at the following pages:

This event is funded by the Long Room Hub Initiative, Trinity College Dublin.

Juries in Rape Cases - Wed. 18 Feb., University of Limerick

Wed. 18 Feb. 2009

Criminal Justice Seminar

"Juries in Rape Cases"

Conor Hanly, NUI Galway

3-4 p.m., Schuman Building, Room SG18.

All are welcome to attend.

Criminal Justice Seminar, Centre for Criminal Justice, School of Law, University of Limerick.

Information from Dr Gerard Coffey, Centre for Criminal Justice, School of Law, University of Limerick.

Email Address:



Call for Papers: Irish Criminology Conference - UCD, 15-16 June 2009

UCD Institute of Criminology
Fifth Irish Criminology Conference
15 and 16 June 2009
Dear Colleagues,
The UCD Institute of Criminology will host the Fifth Irish Criminology Conference on Monday 15 and Tuesday 16 June 2009. Papers are invited from research students, academics and policy makers in the fields of criminology and criminal justice.  Please forward a title and abstract (no more than 200 words) to by 30 April. A final decision on the selection of papers will be made by 11 May.
There is no registration fee for the conference.
A number of bursaries will be available to cover travel expenses for students from outside Dublin who wish to attend and present a paper but would be otherwise unable to do so. Those wishing to be considered for a bursary should make this clear when submitting their abstract.
I would be grateful If you would pass on these details to any Interested parties.

With best wishes

Professor Ian O'Donnell, Director, UCD Institute of Criminology
University College Dublin