Darius Whelan, ‘Application of the Paternalism Principle to Constitutional Rights: Mental Health Case-Law in Ireland’ (2021) 28 European Journal of Health Law 223 https://doi.org/10.1163/15718093-bja10047
It's available in this Open Access version.
Here is the abstract:
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.
