When is a Voluntary Patient not a Voluntary Patient? An examination of the degree to which the Irish courts have sought to engage with the jurisprudence of the European Court of Human Rights, in relation to the treatment and detention of voluntary or 'informal' patients

Abstract

Faced with the difficulty of reconciling the tensions between the need for treatment, and respecting patients’ rights, case law suggests that the courts in Ireland have tended to maintain a deferential approach to the medical profession and not to give voice to the significant rights protections set out in the jurisprudence of the European Court of Human Rights (‘ECtHR’) and instead view the legislation in this area, the Mental Health Act 2001 through a paternalistic prism. This has given rise to what seems at first glance to be the extraordinary logic in what is now the leading, and only, Irish Supreme Court case in the area, E.H. v Clinical Director St Vincent’s Hospital. This case states that a voluntary patient is not a voluntary patient in so far as one ordinarily understands the word. In the Supreme Court, Kearns J, said:

‘The terminology adopted in s.2 of the Act ascribes a very particular meaning to the term ‘voluntary patient’. It does not describe such a person as one who freely and voluntarily gives consent to an admission order.’

This suggests an interpretation of the 2001 Act which is not immediately reconcilable with the considerable body of jurisprudence of the European Court of Human Rights.