A Court of Appeal ruling that a hospital acted illegally by preventing the discharge of an elderly woman with dementia is likely to have long-term consequences. No statutory power to detain the woman had been identified, Mr Justice Gerard Hogan found, and if the courts accepted this "self-created power of detention" in her "best interests" then tens of thousands of people with impaired capacity in nursing homes could be prevented from leaving. There was, he said, no halfway house between liberty, unfettered by restraint, and an arrest.
This issue of involuntary detention has given rise to major scandals in Irish society. People were, in effect, locked away by their families or by State-supported agencies in mental and other institutions. But the legal rights of the individuals who were so badly treated have slowly been recognised. A Mental Health Act led the way. The provisions of an Assisted Decision Making Act will come into force next year. And legislation that addresses the deprivation of liberty is being drafted.
Sage Advocacy, an organisation that promotes the necessity for vulnerable adults and older people to be consulted on issues that directly affect themselves, has welcomed the appeals court decision.
Founded four years ago, following the abuse of residents at the Leas Cross and Áras Attracta nursing homes, Sage Advocacy operates on the principle: "Nothing about you/without you". A director of the organisation, Mervyn Taylor, emphasised the need to protect the rights, freedoms and dignity of vulnerable people independent of family, service provider or system interests.
By rejecting a “self-created power of detention” by institutions on the basis of “duty of care” or the “best interests” of patients or residents, Mr Justice Hogan concentrated on this issue. In many cases, he said, people might be detained for good clinical reasons but it could also happen for institutional convenience and for “less noble reasons”. The hospital had acted in the woman’s best interests, the court found, but it had not been legally entitled to prevent her leaving.