Case Note: AB v The Clinical Director of St Loman's Hospital

• Author: Aoibh Cassidy
• Position: Senior Freshman LL.B. Candidate, Trinity College Dublin
• Pages: 66-76

© 2019 Aoibh Cassidy and Dublin University Law Society

CASE NOTE: AB V THE CLINICAL DIRECTOR OF ST

LOMAN’S HOSPITAL

AOIBH CASSIDY

Introduction

Article 40.4.1 of Bunreacht na hÉireann states that ‘No citizen shall be

deprived of his liberty save in accordance with law.’ It would seem

unsurprising then that the involuntary detainment of individuals for their

own safety under the Mental Health Act 2001 has been a highly contentious

issue in Irish law. Legal challenges to the constitutionality of these

detentions are often unsuccessful due to the strong paternalistic approach

taken by the courts which strives to consider the best interests of the patient.

1

However, these decisions can result in the patient being deprived of their

liberty and, it is argued, left without sufficient safeguards provided for in

legislation. The declaration of unconstitutionality of section 15(3) of the

Mental Health Act 2001 in the recent decision of the Court of Appeal in AB

v The Clinical Director of St. Loman’s Hospital

2

represents then a positive

development in the courts’ position on the issue of involuntary detention of

mentally ill patients. In respect of patients’ rights regarding detention

periods, it has been heralded as the most important Irish case since the 2001

Act was first introduced.

3

The decision can be viewed as a significant effort

by the Court to balance the concept of paternalism with the fundamental

right to individual liberty.

I. Background

The position that the Irish courts have taken regarding the protective

detention of patients stems originally from the Mental Treatment Act 1945

which was the first major piece of mental health legislation enacted in

Ireland since independence. In Re Philip Clarke,

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the plaintiff had

 Senior Freshman LL.B. Candidate, Trinity College Dublin. The author would like to thank

the Senior Editorial Board for their useful comments and suggestions on an earlier draft of this

case note.

1

Gerard Whyte, ‘Constitutional Litigation and Disability Rights’ (2012) 48 The Irish Jurist

303, 305.

2

[2018] IECA 123.

3

Amy Deane, ‘AB v The Clinical Director of St Loman’s Hospital and Others: An

Advancement in Patients’ Rights’ (2018) Medico-Legal Journal of Ireland 24(1) 28, 28.

4

[1950] IR 235 (SC).