Irish Series: Court of Appeal suspends finding that State breaching Right to Personal Liberty

The Irish Court of Appeal has deemed a key provision of the Mental Health Act 2001, which governs the long term detention of up to 100 people in psychiatric institutions and the Central Mental Hospital in Ireland, to be unconstitutional.

However, due to the “potentially chaotic and catastrophic consequences” of the finding, the court has suspended the declaration of unconstitutionality for a period of 6 months so that appropriate laws can be enacted to address the fallout position.

The finding arose on an appeal by the State against findings of the High Court in proceedings taken by a man who was detained in a psychiatric hospital in May 2015 on foot of an admission order after he suffered a serious psychotic episode. The detained man was automatically entitled to a review of his detention six weeks later and again after 3 months. In November 2015, a doctor deemed him to have recovered sufficiently to be discharged if he was to get the appropriate residential support, however funding for supported accommodation was not provided for him until 2017, which effectively meant that the man was detained indefinitely in a psychiatric ward.

The High Court ruling in May 2017 held that a person detained under the provision of the Act for a lengthy period was entitled to challenge the lawfulness of their continued detention at appropriate intervals before the Courts.

The State appealed the High Court decision and the Court of Appeal concluded that Section 15.3 of the Mental Health Act 2001 was unconstitutional, which provides for the making of orders extending periods of detention by up to 12 months. The Court said that the section meant that there was no effective procedure or method whereby an involuntary patient detained for extended longer periods could seek an independent review of their detention within a reasonable time.

The outcome of the finding means that the Court has found the State to be failing in its duty to vindicate the detainee’s right to personal liberty, amounting to a breach of Article 40.1 of the Constitution.

A finding of unconstitutionality demands an “immediate and imperative response” by the Oireachtas and Government to legislate in relation to the issue, hence the decision to postpone the finding. The Court learned that there are currently 78 patients who are the subject of the long term detention orders, with a further 15 patients at the Central Mental Hospital. If the affected patients were released as a result of the finding of unconstitutionality of their detention at this time and without the appropriate measures being out in place to safeguard them, it could have very unfortunate consequences for their safety and personal welfare.

Our Irish qualified solicitor Caoimhe Boyce keeps her eye on the legal news in Ireland. For further discussion or to get her views on any matter, contact her on

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