Friday, January 27, 2023

I published this article with Patrick Daly in 2021: 

Patrick Daly & Darius Whelan, ‘Disability in employment equality law: A reappraisal of the reasonable accommodation duty and issues arising in its implementation’ (2021) 28 Maastricht Journal of European and Comparative Law 744.

Here is the abstract:


This article re-considers the special features of the disability ground in EU equality law and raises questions as to whether the EU’s Framework Equality Directive (Directive 2000/78) may be in need of fundamental reform. It argues that the ‘Competence Defence’ in the Directive could have been more strongly drafted, to prescribe more precisely the circumstances in which an individual may be found not to be competent to perform the post’s essential functions. In the absence of a unified EU approach regarding the activation of the reasonable accommodation duty and an employer’s knowledge as to disability or the need for reasonable accommodation, national positions are compared. A model whereby the provision for individuals with disabilities is carried out in a proactive as opposed to a reactive manner could reduce the need for the reasonable accommodation system. The possibility of increased state involvement in the provision of reasonable accommodation to employees has strong potential. It is proposed that the principle of Universal Design, as expressed in the Convention on the Rights of Persons with Disabilities, could be used to ensure that work environments are developed from the outset to be conducive to the needs of those with physical or psychosocial disabilities. The implications of such a major change are assessed.

Friday, January 20, 2023

Book Review of Mental Health Homicide and Society: Understanding Health Care Governance by David Horton

I published a book review of Mental Health Homicide and Society: Understanding Health Care Governance by David Horton in 2021.

The review is in (2021) 60 Howard Journal of Crime and Justice 607. See 

Extract from the review:

"This is a fascinating book, providing rich insights into mental health homicide investigations. The author has undertaken a challenging task in applying Luhmann's systems theory to this field. The empirical work, in the form of the interviews, provides extra depth and a very high level of originality."


Friday, January 13, 2023

Application of the Paternalism Principle to Constitutional Rights

In 2021, I published this article: 

Darius Whelan, ‘Application of the Paternalism Principle to Constitutional Rights: Mental Health Case-Law in Ireland’ (2021) 28 European Journal of Health Law 223    

It's available in this Open Access version.

Here is the abstract:


In adjudicating on matters relating to fundamental constitutional or human rights, courts make important statements about the principles which apply. The principles articulated will have a profound impact on the outcomes of such cases, and on the development of case-law in the relevant field. In the fields of medical law and mental health law, various courts have moved away from deference to medical decision-making and paternalism to a person-centred rights-based approach. However, courts in Ireland have continued to interpret mental health law in a paternalistic fashion, praising paternalism as if it is particularly suitable for mental health law. This raises profound questions about judicial attitudes to people with mental health conditions and judicial reluctance to confer full personhood on people with disabilities. This article outlines case-law in Ireland regarding paternalism in mental health law and discusses the consequences for constitutional rights in Ireland.

Sunday, October 11, 2020

Hunger Strikes in Prison: The Legal Issues


I contributed a paper on "Hunger Strikes in Prison: the Legal Issues" to a University College Cork conference this week.

The conference was "Terence MacSwiney, Cork Men’s Gaol, and the Political Hunger Strike, 1920-2020" and it was organised by the School of History.

My paper draws on themes discussed in this paper: Gautam Gulati, Darius Whelan, Eimear Spain, David Meagher & Colum Dunne, ‘Hunger Strikes in Prison: a Legal Perspective for Psychiatrists’ (2019) 36 Irish Journal of Psychological Medicine 55.  

My slides for the paper are available here.

Monday, June 29, 2020

Copyright Law for Digital Learning

I last wrote here about Copyright Law for Digital Teaching and Learning in 2015.  Since then, new legislation has been enacted - the Copyright and Other Intellectual Property Law Provisions Act 2019.  

The new Act implements some of the recommendations of the Copyright Review Committee in 2013, and is particularly strong in implementing the education provisions.  The Committee's members were Eoin O'Dell, Patricia McGovern and Steve Hedley.  

I was asked to give a talk at a seminar today for the Irish Universities Association Enhancing Digital Teaching and Learning in Irish Universities #IUADigEd.  I've made the slides available here.  I've also produced an updated version of some of the relevant sections of copyright legislation.  

There's a lot to take account of in making decisions about what is permissible copyright-wise for digital learning.  If the work you wish to use is a literary work (broadly defined) or an image which is an integral part of a literary work, then a college needs to abide by the Irish Copyright Licensing Agency licence, but bear in mind that a new licence will be produced for the next academic year.  

[Update:  the new ICLA licence is now available:  see here and here.]  

However, if the work is, for example, a video (referred to as a "film" in copyright law), then one can rely on the new broad exceptions in section 57A and section 57B.  Section 57A on 'distance learning' applies to all students in a  college, not just those taking online courses.  It allows the video to be communicated "as part of a lesson" to a  student by telecommunication.  

In the slides, I refer to the very useful work in this field by Jane Secker and Chris Morrison in the UK (here and here) and by Teresa Nobre for COMMUNIA (here and here).  See also Eoin O'Dell's recent post on Coronavirus and copyright – or, the copyright concerns of the widespread move to online instruction

At European level, we are watching closely the implementation of the Copyright in the Digital Single Market Directive, in particular Article 5 on "Use of works and other subject matter in digital and cross-border teaching activities."   In Ireland, the Department of Business Enterprise and Innovation is dealing with the national implementation of the Directive.  This Department will shortly be renamed as the Department of Enterprise, Trade and Employment.  It is possible that responsibility for Intellectual Property might be transferred to one of the other renamed Departments.  

Catherine Cronin also spoke at the same seminar, discussing OER and OEP: Open licenses for digital Teaching & Learning.  She emphasised why Open Education is so valuable (under Access, Equity and Pedagogy headings).  Her slides are here

A video recording of the seminar is available here.  

We have a list of resources related to the seminar here.  

Thursday, December 19, 2019

Emails outside working hours: are they against employment law?

I have posted an article at The Conversation on this topic. 
It's published under Creative Commons licence.

Opening paragraphs:

It is common for many employees to send, read and reply to work emails at all hours of the day and night, including weekends. This change in work culture developed in recent decades and has accelerated with the advent of smartphones. But is this a breach of employment law? The short answer is that “it depends” and we need some test cases to clarify the situation, not least in the UK.

Some workplaces have a culture of long working hours and it can be difficult for an individual employee to go against it. The contract may refer to a 40-hour week but the reality may be very different. Smartphones and other digital devices have contributed to a culture of “digital presenteeism”.

Staff may feel that, if they don’t keep up .... 
Read More

Wednesday, August 21, 2019

Events from August 2019 onwards

Irish Law Events Retweeted

Constitution Project
Delighted to announce programme and registration details for our forthcoming conference @UCC on "Sovereignty, Populism and Constitutional Politics", 30-31 August. In association with British & Irish Chapter of @ICON__S.  CPD available! 

@deckie: Looking forward to hosting Competition Law Scholars' Forum at @UCC @LawUCC. A great lineup with John Temple Lang as our keynote speaker

@UccCriminology: The 12th North South Criminology Conference will be held in UCC on the 2nd and 3rd September 2019.

NUI Galway, 23-27 Sept. 2019:
Training on the Assisted Decision Making (Capacity) Act

NUI Galway, 12 Sept 2019:
Getting to Grips with the UN Convention on the Rights of Persons with Disabilities: What Does it Mean for Ireland?

NUI Galway, 27 Sept. 2019:
School of Law Annual Distinguished Lecture 2019.
Justice Leona Theron of the Constitutional Court of South Africa.
”Are we all Equal? Is the new South Africa’s promise of true equality a reality or still a dream?”

TCD, Dublin, 4 Oct. 2019:
Regulating the Future of Human Work: a Christian Ethics Perspective

TCD, Dublin, 12 October 2019:
Irish Supreme Court Review - Second Annual Conference

UCD, Dublin 29 October 2019
The Offences Against the State Act at 80: Omni-Act or Omni-Shambles?
Society of Legal Scholars Annual Seminar 2019

Why we respond and why we turn away: human rights abuses in a changing world
Dublin, 6 September 2019.

@law_IALT: Our Annual Conference will take place @LimerickStrand from 22 to 24 November 2019. The Conference theme is "Beyond Borders: Collegiality and Collaboration in Law" and the call for papers is available here:

Friday 11 October 2019:
“Behind Closed Doors: Crimes of Violence, Coercive Control and Abuse in Family and Intimate Relationships”
Association for Criminal Justice Research and Development. Dublin.

Seminar and Book Launch on 27 September
The evening will begin with a seminar on the subject of the transformation of EU Treaty Making

Neurodiversity and the Criminal Justice System
November 1st 2019, Dublin.
Association for Criminal Justice Research and Development.

Law Society Education
CPD seminars :

LLM Programmes in Ireland:

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