Keys M. the Enforcement in Ireland of the Rights of Mentally Disordered

Keys M. The enforcement in Ireland of the rights of mentally disordered people under the European Convention on Human Rights PhD 28th February 2006 UMI Number: U585551 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U585551 Published by ProQuest LLC 2013. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 This thesis examines the rights of people with mental disorder under Irish law against the background of the European Convention on Human Rights. It proposes that Irish law does not meet the minimum standards laid down by the Convention and that significant law reform is required to achieve this aim. The main issues concern the admission, detention and treatment of adults and children in psychiatric care and the safeguards provided in the Irish legal system. These matters are considered against the Convention requirements in the context of the current and ongoing process of law reform in Ireland. The rights addressed are: the right to protection from arbitrary deprivation of liberty under Article 5, particularly the liberty of the compliant incapacitated patient. This includes an empirical study of the habeas corpus provision in Ireland. Article 8 and Article 12 rights are examined, specifically, the right to self-determination in a number of spheres including: consent to treatment, the right to marry, to have a sexual relationship and children and the right not to be sterilised. The right to protection from inhuman and degrading treatment in Article 3 includes consideration of positive state obligations to protect physical integrity in relation to conditions of detention, seclusion and aspects of treatment. The right in Article 2 to have one’s life protected from foreseeable risks and the obligation on the state to investigate following death is examined. The restrictions on the removal of civil rights and obligations in relation to access to court to take civil action and to have control over one’s property and affairs are examined for compliance with Article 6. The outcome of the examination confirms the proposal that Irish law does not meet the minimum standards of the Convention. Acknowledgements I wish to express my gratitude to my supervisor, Prof. Phil Fennell, Cardiff University Law School, for his support and assistance since the commencement of this work. His willingness to share his in-depth knowledge of the subject inspired me throughout and enabled me to examine areas I would not otherwise have considered. He was always available to provide encouragement and feedback and for this I am grateful. I would like to acknowledge the invaluable assistance I received from Dr. Sara Drake, Cardiff University Law School, who read and commented on earlier drafts of the work. I wish to acknowledge also the support I received from my colleagues at the Law Faculty, National University of Ireland, Galway. I would like to thank, in particular, Larry Donnelly, Shivaun Quinlivan, Donncha O’Connell and Marie McGonagle. Others I would like to acknowledge are, Dr. Anne-Marie O’Neill and Noel Doherty from the Wards of Court Office. Finally, I would like to thank my husband Gerry, and my children, Cliodhna, Maeve and John for their patience and understanding. TABLE OF CONTENTS INTRODUCTION TO THESIS Introduction 1 Influences on law reform 3 Growth o f service user movement 4 English influences on Irish law 5 International human rights standards 5 Formal recognition o f the European Convention on Human Rights 1 European Convention on Human Rights Act 2003 10 The Irish Human Rights Commission 13 Mental health law reform 14 Vulnerable Adults 18 Summary of contents 18 CHAPTER 1 ARTICLE 5 AND THE RIGHT TO LIBERTY UNDER IRISH MENTAL HEALTH LAW Introduction 23 Article 5(1) Deprivation of liberty 25 Irish law and deprivation of liberty 30 Mental Treatment Act 1945 30 Mental Health Act 2001 32 Article 5(l)(e) Criteria for detention 34 Irish Law and criteria for detention 41 Mental Treatment Act 1945 4 1 Mental Health Act 2001 45 Procedure prescribed by law 50 Irish law and procedures prescribed by law 53 Mental Treatment Act 1945 54 Mental Health Act 2001 61 Article 5(2) Introduction 64 Promptly 65 Intelligible Information 66 Irish law and Article 5(2) 67 Irish law and provision o f prompt information 67 Conclusion 68 CHAPTER 2 ARTICLE 5.4 AND THE RIGHT TO REVIEW OF DETENTION UNDER IRISH LAW Introduction 73 Initial and regular review proceedings 75 Habeas corpus and Irish law 79 Study into the Applications for Habeas corpus from 1923-1999 86 Methodology 87 Extent o f use o f habeas corpus 88 Sources o f applications to High Court 89 Legal representation 89 Spread o f applications 89 Central Mental Hospital 90 Outcome of all applications for habeas corpus 92 Conclusions from study 93 Judicial review and Ireland 94 Access to court 97 Irish law and review of detention 99 Mental Treatment Act 1945 100 Mental Health Act 2001 100 Speedy review 104 Irish law and speedy review 107 Mental Treatment Act 1945 107 Mental Health Act 2001 108 Legal aid 108 Irish law and legal aid 110 Mental Treatment Act 1945 110 Mental Health Act 2001 110 Information Rights 110 Irish law and information 111 Mental Treatment Act 1945 111 Mental Health Act 2001 111 De facto detention 112 Irish law and de facto detention 114 Mental Treatment Act 1945 114 Mental Health Act 2001 114 Discharge and delay 114 Irish law discharge and delay 117 Mental Treatment Act 1945 117 Mental Health Act 2001 117 Conclusion 119 CHAPTER 3 ARTICLE 8 AND THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE UNDER IRISH LAW Introduction 120 Private life 121 Private life and the right to self-determination 124 Irish law and the right to self-determination 127 Constitutional law 127 Common law 129 Incapacity legislation 131 Advance directives 132 Mental health legislation 133 Mental Treatment Act 1945 133 Mental Health Act 2001 136 Confidentiality of medical information 147 Irish law and confidentiality of medical information 148 Mental health legislation 150 Family life 151 Irish law and right to respect for family life 153 Constitutional law 153 Mental health legislation 154 Home 154 Irish law and right to respect for home 155 Constitutional law 155 Mental health legislation 155 Correspondence 157 Irish law and right to respect for correspondence 158 Constitutional law 158 Mental health legislation 158 Conclusion 159 CHAPTER 4 ARTICLE 3 AND THE PREVENTION OF TORTURE, INHUMAN AND DEGRADING TREATMENT UNDER IRISH MENTAL HEALTH LAW Introduction 162 The Committee for the Prevention of Torture 164 Minimum level of severity 165 Conditions of detention 168 Seclusion 172 Irish law and Article 3 173 The CPT and Ireland 175 Constitutional law 176 Mental Treatment Act 1945 178 Seclusion 179 Mental Health Act 2001 179 Medical treatment 181 Irish law and medical treatment 186 Mental Treatment Act 1945 186 Mental Health Act 2001 187 Failure to treat 187 Irish law and failure to treat 189 Treatment side-effects 192 Irish law and treatment side-effects 193 Conclusion 194 CHAPTER 5 ARTICLE 6 AND THE RIGHT TO A FAIR HEARING UNDER IRISH MENTAL HEALTH LAW Introduction 196 Civil rights and obligations 198 Right of access to court 201 Fair and public hearing 203 Legal representation 204 Reasonable time 205 Independent and impartial tribunal 206 Article 6 and mental health detention 207 Irish law and the right to litigate 209 Constitutional law 209 Mental Treatment Act 1945 210 Mental Health Act 2001 217 Legal aid 219 Conclusion 219 CHAPTER 6 ARTICLE 6 AND THE PROTECTION OF THE PROPERTY OF VULNERABLE ADULTS UNDER IRISH LAW Introduction 221 Origins of ward of court system in Ireland 222 Sources of law 223 Unsound mind 227 Procedure for wardship 231 Urgent procedure 233 Limited assets procedure 233 Temporary procedure 234 New procedure 234 The committee 235 Standard of proof 236 Effect of declaration 236 Wardship and other civil rights 239 Marriage 239 Testamentary capacity 239 Voting 240 Discharge from wardship 240 Conclusion on wardship 241 Powers of Attorney 243 Law reform 245 Law Reform Commission-general principles 246 Law Reform Commission for assessing capacity 248 Law Reform Commission proposed structures 248 Conclusion 249 CHAPTER 7 ARTICLE 2 AND THE RIGHT TO LIFE UNDER IRISH MENTAL HEALTH LAW Introduction 253 Positive obligations 254 Action by state agents 255 Duty to protect public from risk of unlawful killing by mentally disordered person 257 Duty to protect mentally ill detainee from suicide 258 Duty to protect detainees from being killed by non-state agents 261 Duty to carry out an investigation 262 Irish law and Article 2 265 Constitutional law 265 Legislation 265 Investigation 266 Death in detention 267 Conclusion 269 CHAPTER 8 ARTICLE 12 AND THE RIGHT TO MARRY AND FOUND A FAMILY UNDER IRISH MENTAL HEALTH LAW Introduction 271 The right to marry 272 Detention and the right to marry and found a family 273 Irish law on the right to marry and found a family 275 Constitutional law 275 Common law 276 Marriage legislation 278 Criminal law and the right to a sexual relationship

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