Can the Right to Personal Liberty Be Interpreted in a Paternalistic Manner?: Cases on the Mental Health Act 2001

Irish Human Rights Law Review, Forthcoming

20 Pages Posted: 1 Apr 2011

See all articles by Darius Whelan

Darius Whelan

University College Cork - School of Law

Date Written: January 10, 2011

Abstract

The Mental Health Act 2001 introduced major reforms of Ireland’s civil mental health law and instigated a new era for those detained in psychiatric hospitals and units. The main focus of the Act was improvement of the legal regime concerning involuntary detention of persons with mental disorders, an area of law which concerns a number of constitutional and human rights, particularly the right to personal liberty. One of the most surprising aspects of the case law interpreting the Act has been that the courts have referred on numerous occasions to the need to interpret the Act in a “paternalistic” manner. In this article, the meaning of paternalism and its possible application to the right to personal liberty in mental health law are considered. The case law concerning the Mental Treatment Act 1945 is reviewed, followed by the case law since the Mental Health Act 2001 came into force in 2006. The tension between paternalism and autonomy is explored, and the question of whether a paternalistic interpretation of the 2001 Act is compatible with the ECHR is considered.

Keywords: Ireland, law, mental health law, mental disability law, law and psychiatry, civil commitment

Suggested Citation

Whelan, Darius, Can the Right to Personal Liberty Be Interpreted in a Paternalistic Manner?: Cases on the Mental Health Act 2001 (January 10, 2011). Irish Human Rights Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1798872

Darius Whelan (Contact Author)

University College Cork - School of Law ( email )

Cork
Cork
Ireland
+353-21-490 3000 (Phone)

HOME PAGE: http://www.ucc.ie/law/

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