The Irish Human Rights Commission (IHRC) is appearing today in the High Court as amicus curiae or ‘friend of the court’ in D v Health Service Executive which challenges the constitutionality of Section 57 of the Mental Health Act 2001, as well as its compatibility with the European Convention on Human Rights Act 2003. The IHRC will highlight key human rights standards and safeguards under the Constitution, the UN Convention on the Rights of Persons with Disabilities (CRPD) and the European Convention on Human Rights (ECHR).
The IHRC was granted leave to intervene in the proceedings on 21 October 2011 and the hearing will commence on 28 February 2012 for two days.
Ms D (who may not be named for legal reasons) is currently detained in a psychiatric institution, where she is being treated. This treatment requires the regular taking of blood tests to guard against a possibly fatal adverse physical reaction to medication. The patient is resisting the blood tests, which then requires that she be sedated or restrained while the blood tests are being taken. The treating doctors have determined that the treatment is in the best interest of Ms D and is necessary to relieve her condition.
Section 57 of the Mental Health Act 2001, allows for the non-consensual medical treatment of an involuntary patient where it is determined by their consultant psychiatrist that they lack capacity to consent to such treatment, and where such treatment is necessary to safeguard the life of the patient, to restore his or her health, or to alleviate his or her condition or suffering.
The case follows an earlier case involving Ms D where the Health Service Executive (HSE) had sought direction from the High Court as to the definition of “treatment” under Section 57 and whether it includes intrusive procedures such as the taking of blood tests. The High Court had decided that the term ‘treatment’ did have such a broad meaning. Ms D then began the present challenge.
Dr Maurice Manning, President of the IHRC stated
“At the heart of the IHRC’s submissions in the case is the presumption of capacity that all people, including people with mental disabilities, enjoy under Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD).” Dr Manning continued “The IHRC’s submissions as a ‘friend of the court’ will additionally draw the Court’s attention to the rights protected under Articles 6 and 8 of the ECHR and to recent case law of the European Court of Human Rights on these matters.”
Mr Des Hogan, Acting CEO of the IHRC said
“At present in Ireland legal capacity is determined under the Wards of Courts system which is based on the outdated Lunacy Regulation (Ireland) Act 1871, with the procedure set out in the Rules of the Superior Courts. The Government is presently considering the introduction of a new statutory code to underpin determinations regarding capacity and we would welcome the publication of the draft legislation as soon as possible. The IHRC will be advising the Oireachtas Joint Committee on Justice, Defence and Equality on this legislation at a hearing on Wednesday 29 February 2012, which will coincide with the last day of the hearing in the D case at which time we will make oral submissions to the Court.”
ENDS/
For more information, please contact
Fidelma Joyce, IHRC Tel: 01 8589601 Mob: 087 783 4939
Notes to Editor:
- European Convention on Human Rights
Article 6 Right to a Fair Hearing
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- This is the IHRC’s fourteenth intervention in the Superior Courts as amicus curiae further to section 8(h) of the Human Rights Commission Act 2000
- The IHRC’s written submissions will be placed on the website at the conclusion of the hearing.