Emily Logan

The Commission has appeared before the Supreme Court as amicus curiae in a case that explores whether the procedures under which someone can be confined to a hospital or nursing home and made a ward of court are lawful.

The woman at the centre of the case, AC, was confined to Cork University Hospital in 2016. She was later made a ward of court, and transferred to a nursing home. Acting on her behalf, AC’s son, PC, instituted High Court proceedings to challenge the lawfulness of her detention in Cork University Hospital and in the nursing home.

The Supreme Court this week heard appeals arising out of the circumstances of the case. In reaching its decision, the court will consider whether AC’s confinement to Cork University Hospital and to the nursing home was carried out in accordance with the law, and whether the legal mechanism by which she was made a ward of court sufficiently protected her rights.

The case is expected to explore the nature and extent of the rights and protections afforded to people with mental health disabilities in Ireland, including their right to have their voices heard, and its outcome is likely to impact on voluntary patients in nursing home and hospital settings.

The Commission’s legal submissions to the Supreme Court set out AC’s rights under the Constitution of Ireland and the European Convention on Human Rights (ECHR), and explore whether they were breached.

The Commission contends that AC was unlawfully detained in Cork University Hospital, and that her subsequent wardship was not made in accordance with the fundamental rights guaranteed by the Constitution and was also incompatible with Article 5 ECHR.

Also in its submissions, the Commission highlighted the need to move away from the default paternalistic approach to cases involving people with disabilities, in light of the Convention on the Rights of Persons with Disabilities, ratified by Ireland in March 2018.

In its role as amicus curiae, the Commission makes available to the Court its expertise it gained in the landmark cases L v Clinical Director of Saint Patrick’s Hospital and Ors, which clarified the rights of voluntary patients in approved centres, and AB v Clinical Director of Saint Loman’s and Ors, which found s.15(3) of the Mental Health Act 2001 to be unconstitutional.

Emily Logan, chief commissioner of the Irish Human Rights and Equality Commission, said: “Most of our wardship legislation was written at a time when attitudes to physical and mental incapacity were very different, as the title of the Lunacy Act 1871 suggests.

“The Commission believes that this appeal discloses a systemic deficiency in the procedures governing wardship, particularly as they relate to the participation of wards and their families in decisions affecting their human rights.

“The emphasis on dignity and individual autonomy, freedom of choice and independence set out in article 3 of the UN Convention on the Rights of Persons with Disabilities, ratified by Ireland last year, echoes the Irish Constitution, and must see us move beyond a historic paternal approach to one centred on a person’s will and preferences.”