Judge dismisses claims on consent procedures



Neutral citation: 2012 (IEHC) 491.

High Court

Judgment was given by Mr Justice John MacMenamin on November 23rd, 2011.


Claims by a woman of unsound mind that consent procedures under mental health legislation were incompatible with the Constitution were dismissed because it was held the legislation could be constitutionally interpreted. The court also held that a mandatory court hearing was not required in every case arising under the said procedures, ie involuntary medication.


The case involved a woman being held in the Central Mental Hospital in Dublin as a “civil” patient, that is, someone neither prosecuted nor convicted of any criminal offence. She had been diagnosed as suffering from paranoid schizophrenia and borderline personality disorder, conditions associated with extreme violence.

Her doctors sought to administer a drug regime to improve her condition.

However, one of the possible side effects of this regime was a decline in white blood cell count, with a potentially fatal outcome arising from infection. This meant that her blood had to be monitored through the invasive and regular taking of blood samples by syringe. The woman strongly objected to this procedure.

The court found doctors treating the woman could take blood samples without her consent, where the safe administration of her treatment for mental illness required the regular taking of such blood samples.

Mr Justice MacMenamin said that while the woman enjoyed the right to protection from inhuman and degrading treatment, the primary constitutional values engaged were the need to safeguard her life and health. The woman’s counsel appealed the decision, claiming if medical decisions continued to be made on her behalf, by reason of her incapacity, then such treatment should be shown to be necessary before an independent tribunal or court.

It was contended that the review procedure insufficiently vindicated the plaintiff’s constitutional rights and that the section of the Mental Health Act under which she was being treated was repugnant to the Constitution.

While not fully alluded to in the pleadings, it was claimed that she was entitled to have the medical options concerning her treatment made on an “assisted decision-making” basis, which would give proper weight to her own wishes as to that treatment.

A novel argument was also put forward that the UN Convention on the Rights of Persons with Disabilities was directly applicable in Ireland, by virtue of the fact the European Union is a signatory to that Convention, even though Ireland has not yet ratified the Convention.


The court found the provisions in the Mental Health Act, under which the woman was being treated, were not inconsistent with the Constitution.

While it acknowledged the invasion of her constitutional rights was very significant, as she was being medically treated against her will, it concluded that only in this manner “can the rights of the plaintiff under the Constitution be vindicated ‘as far as practicable’.”

While the argument that the UN Convention on the Rights of Persons with Disabilities had direct effect in Ireland was dismissed, Mr Justice MacMenamin acknowledged the guidance provided by the Convention in relation to issues of legal capacity. “Although the UN Convention itself is not part of our law, it can form a helpful reference point for the identification of ‘prevailing ideas and concepts’, which are to be assessed in harmony with the constitutional requirements of what is ‘practicable’ in mind.”

The judge also concluded that the patient was entitled to both an independent review and to an assisted decision-making process in vindication of the rights.

However, a need for mandatory ongoing court involvement, by means of an independent tribunal or court hearing, was dismissed. Mr Justice MacMenamin said: “In my view, it would involve a degree of legal involvement in the field of psychiatry, which would be unprecedented, and, I believe, often impractical.”

The full judgment is on courts.ie.

Lawyers: Timothy O’Leary SC and Michael Lynn BL, instructed by St John Solicitors, Dublin, for the plaintiff; Felix McEnroy SC and Barry O’Donnell BL, instructed by Byrne Wallace, for the HSE.