PILA Bulletin for
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Irish High Court ruling
In The Health Service Executive v. M.X. (a person of unsound mind not so found) represented by her solicitor [2010] No.1126 P, the Irish High Court has held that the definition of "treatment" in Irish legislation includes the administering of ancillary treatment such as the taking of blood tests from patients deemed incapable of giving consent, where such ancillary treatment is necessary "to restore the patients' health and to alleviate [her] condition".
The case was brought by doctors administering the patient's treatment who sought guidance from the Court as to the lawfulness of administering ancillary treatment to the patient. It concerned an involuntary patient who suffered from paranoid schizophrenia and a borderline personality disorder. As part of her treatment, regular blood tests were required to monitor her white cell count to prevent adverse reaction to the treatment, which could prove fatal. The patient objected to the blood tests and had to be restrained during this process. An independent psychiatrist, appointed by legal representatives for the patient, found that the course of treatment was appropriate and in the patient's welfare.
In the course of his judgment, MacMenamin J noted "a gap in understanding between those who seek a 'rights-based' approach and others who lay emphasis on the the challenges of taking care of patients on a day-to-day basis".
He concluded that "the Court in its interpretation of the Act, and in the assessment of the defendant's best interest, should allow for a medical procedure which albeit invasive, is ancillary to, and part of the procedures necessary to remedy and ameliorate her mental illness or its consequences. Clearly 'treatment' could not include measures or procedures which are entirely unrelated to a patient's mental health".
Counsel for the patient also argued that the legislation did not protect her rights under the Irish Constitution and the European Convention on Human Rights, as it failed to provide for an independent arbitrator as to a patient's capacity. However MacMenamin J noted that neither a declaration of Constitutional invalidity nor a declaration of incompatibility with the ECHR had been sought. Accordingly, he granted the parties time to consider his judgment and whether the Irish Human Rights Commission and/or Attorney General, should be invited to participate.
Submissions on proposed Mental Health Capacity legislation
Meanwhile, various submissions have been made on the scheme of Ireland's Mental Capacity Bill 2008:
- The Mental Health Reform group - a national coalition promoting improved mental health services in the State - have recommended that capacity legislation should provide for "supported decision-making", to enable persons lacking capacity to participate in decision making to the fullest extent possible. They have also recommended that the term "voluntary patient" in Irish mental health legislation be amended so as to refer to persons who have the capacity to consent to their admission and treatment. Click here to view Mental Health Reform's submission.
- Amnesty International's submission recommends that the Bill's objective should be to enhance the individual's capacity so as to enable them to make decisions affecting their lives. They propose that the Bill provide for an "independent capacity advocacy service" and "capacity advocates", to guarantee that individuals receive the support they need to enhance their decision-making capacity. As regards the administration of medication, they suggest that where a person regains capacity at any time, the programme of medication should cease until the person gives their free and informed consent to receive the medication. Click here to view the Amnesty submission. Click here to support Amnesty's capacity legislation campaign.
- The Centre for Disability Law and Policy (CDLP) at NUI Galway notes that in relation to legal capacity, there has been an international shift towards a support-based system which allows disabled persons to make their own decisions. They also highlight that the Bill does not contain a provision allowing the individual to have future wishes legally enforced in the event of a future lack of capacity. Their submission states that current Irish law on legal capacity may be subject to challenge at the European Court of Human Rights. Click here to view the CDLP's submission. Click here to view a piece by Human Rights in Ireland on this submission.
It is noteworthy that all three submissions highlight shortcomings in the Bill as to its compliance with the international treaty, the Convention on the Rights of Persons with Disabilities. Ireland has signed but not ratified this Convention.
Phil Shiner of Public Interest Lawyers has taken a legal challenge against the Scottish Government in their decision to offer free third-level tuition fees to Scottish nationals, while charging English nationals fees. He claims that this breaches the European Convention on Human Rights and may also violate UK equality legislation.
Readers of the Bulletin may recall that the Public Interest Lawyers are also challenging the English government's increase to third-level tuition fees. Phil Shiner will address this year's Irish Council for Civil Liberties legal practitioner dinner.
Meanwhile, the Union of Students in Ireland (USI) have been granted leave to judicially review the previous Government's decision to decrease the amount of grants awarded to third level students in 2012.
The challenge follows the previous Irish Government's decision to increase the qualifying distance for a student grant from 24 kilometres to 45 kilometres. The Irish Government argue that improvements to public transport should alleviate this difficulty for students.
The USI argue that it could not have been reasonably expected that grants would be cut by such a substantial amount, in some cases over 60%. Commenting on the challenge, Gary Redmond, President of the USI stated "the biggest victims of these cuts are students from disadvantaged backgrounds who rely on the grants to stay in education. If this cut is not reversed many of these students will have no choice but to drop out".
Click here to view more information.
The European Court of Human Rights (Court) has issued new instructions on the interim measure procedure and a revised practice direction.
The Court has a power to issue an interim measure which is binding on member states; for example, to stop a deportation. They only exercise this power in "exceptional cases...[where] the applicant faces a real risk of serious, irreversible harm".
Applicants must submit requests by fax or post as e-mail requests are not accepted. Applications must include detailed reasoning, copies of all supporting documentation and details of the expected date and time of removal.
An application may be made after the final domestic decision - or before it, by indicating the application is subject to a negative decision, where for example deportation or extradition measures would be imminent in the event of an adverse decision.
The practice direction emphasises that the Court is not a final court of appeal and that all domestic remedies should be exhausted before applications for an interim measure.
Click here to view the press release and revised practice direction.
The Association of Care-Giving Relatives and Friends is a Finnish NGO which protects the interests of people in Finland who care for sick, disabled or elderly relatives or friends at home. They have recently submitted two complaints to the European Social Committee with regard to the provision of care to elderly people.
First, the Association complains that whilst Finnish legislation provides for a power for local authorities to grant financial support to carers, in practice such support varies widely, depending upon the local authority budget. The Association alleges a breach of the European Social Charter right to social protection for elderly persons.
Secondly, the Association complains that whereas charges for local authority care provided to elderly people were previously fixed, they now fall within the local authorities' discretion. The Association alleges that in some cases, charges are so high as to be prohibitive. They allege breaches of elderly people's rights to social protection; social and medical assistance; social welfare services; support as elderly people living in institutions.
Click here to view the details of the complaint on the European Social Committee website.
The Australian High Court, that jurisdiction's highest court, has declared unlawful an arrangement between Australia and Malaysia whereby up to 800 asylum-seekers who arrived offshore after 25 July 2011 were to be sent to Malaysia for refugee claims to be processed there. The Australian government purported to be exercising its power under international refugee law to remove refugees to safe third countries.
The relevant Minister issued a declaration that all offshore entry persons arriving after 25 July 2011 were to be removed to Malaysia. However, the Court found that the Minister acted outside his powers in making this declaration. In particular, it held that it was not open to the Minister to state that Malaysia did and would provide adequate protection to asylum-seekers and refugees. Malaysia is not party to the Refugee Convention and does not recognise the status of refugee in its domestic law.
The Australian Human Rights Commission intervened in support of the second plaintiff, who was a child. The Court held that the removal of a child asylum-seeker to another country could only be lawful with the consent of the Minister, as the child's guardian. The Commission have welcomed the judgment, saying "the Minister...will have to consider the best interests of the child before providing consent...it is not easy to imagine a case where it will be in the best interests of an unaccompanied minor to be sent offshore to have their asylum claims processed rather than processing their claim in Australia".
Click here to view the judgment.
Click here to view the press release of the Australian Human Rights Commission.
Amnesty International has claimed that the Syrian authorities "are brutally torturing and killing prisoners simply for being involved in political protests...these deaths in custody may include crimes against humanity". They say at least 88 people have died in Syrian jails during 5 months of protests. Amnesty has urged the UN Security Council to refer the situation to the International Criminal Court, denouncing its response to date as "utterly inadequate".
Meanwhile the International Criminal Court Prosecutor has spoken with the Transitional National Council in Libya and committed to use his mandate to prosecute alleged crimes committed against Libyans. Amnesty alleges that Gaddafi forces in Libya have abused and killed numerous detainees.
Click here to view press releases by Amnesty International.
Click here to view more on the ICC.
US lawsuit
A private lawsuit between aircraft broker Sportsflight Air and aircraft operator Richmor in Columbia County New York has resulted in 1500 documents detailing the flight details of a private aircraft used as part of extraterritorial rendition being made available to the public. The case concerned a dispute over unpaid fees for the service of a Richmor gulfstream jet. Both parties were acting for DynCorp, a US government contractor.
The documents disclosed have been gathered by UK human rights group Reprieve and detail the movement of the plane, phone logs for air- to-ground phone calls and a contact stating that all flight crew were to be American born, non- naturalised citizens. The records also show that the plane stopped at Shannon en route to destinations such as Kabul and that the detainees onboard the plane were referred to by staff as "invitees" of the US Government.
The case was largely heard in an empty courtroom with no interference from the US Government.
A previous attempt by the American Civil Liberties Union against flight planner company Jeppesen resulted in the proceedings being shutdown due to "state secrets privilege".
Commenting on the disclosure of the documents, Reprieve's Legal Director Cori Crider stated "These documents give us an unprecedented insight into how the government outsourced renditions, right down to the complicated paper-trail the CIA used to cover their tracks".
Click here to read comments by Council of Europe Commissioner Thomas Hammarberg on the CIA rendition programme and European involvement.
Click here to view Reprieve's press release and sample rendition documents.
Click here to view an article from the Guardian newspaper.
UK Supreme Court case
In July the UK Supreme Court held that under common law it was not possible to omit secret evidence under the "closed material procedure". Al Rawi and others (Respondents) (Respondents) v. The Security Service & Ors (Appellants) concerned a preliminary issue regarding the Respondent's civil law claim for compensation from the UK authorities following his alleged detention, rendition and torture at the hands of foreign authorities.
The parties settled before the matter came before the Supreme Court. The Court continued with the hearing as it raised an important point of principle.
The Appellants argued that the evidence as part of their defence in the compensation claim could not be disclosed to the other side, given its sensitivity. They submitted that the materials should be subject to "closed material procedure" as it was contrary to the public interest. The material would be disclosed to a "special advocate", who would act in the interest of the Respondent but who could not be instructed by the Respondent.
Citing the case of R v Davis where the UK House of Lords decided that the right to be confronted by one's accusers is fundamental to common law, the Court unanimously disagreed, holding that this was not possible at common law, given the principles of open and natural justice.
In his lead judgment Lord Dyson stated "The open justice principle is not a mere procedural rule. It is a fundamental law principle". The Court noted that it would be possible for the Government to introduce legislation allowing for "closed material procedure" at a later date.
UK human rights groups Liberty and JUSTICE intervened in the case. Commenting on the outcome of the case Corinna Ferguson, Legal Officer for Liberty, stated "The Government should be humbled by this strong defence of the principles of fair and open justice. The law already provides ample protection from disclosure where there are genuine national security concerns, and the Court has made it clear that there are no compelling reasons for change. We hope ministers will now abandon proposals to introduce yet more secrecy into British courts."
Click here to view a posting on the case on the UK Human Rights Blog.
Click here to view Liberty's press release.
Click here to view JUSTICE's press release.
The International Criminal Court (ICC) has heard closing submissions in its first trial, which has run since January 2009, The Prosecutor v. Thomas Lubanga Dyilo. The defendant is a Congolese national accused of having committed war crimes of enlisting and conscripting children under 15 into the Patriotic Forces for the Liberation of the Congo and using them to fight between 2002 and 2003. The trial has had over 220 hearings with 36 witnesses testifying and 123 alleged victims participating.
Click here to view more on the ICC.
PILA and the PILS Project are pleased to announce their inaugural Joint Annual Conference, Political Commitment, Practical Protection: Using the ECHR North and South, which will be held on Friday 11 November 2011 at Croke Park Conference Centre, Dublin.
The conference is focused on the political commitment to and practical implementation of the European Convention on Human Rights (ECHR) in Northern Ireland and the Republic of Ireland since 1998's Good Friday Agreement. Donncha O'Connell, Law Lecturer at the National University of Ireland Galway, is the conference's chairperson.
Shami Chakrabarti, Director of UK human rights organisation Liberty, will deliver the keynote address. Three prominent practitioners from the North and South (Sean Doran BL, Colin Daly and Michael Farrell) will then speak about how the ECHR is being used practically in both jurisdictions.
The afternoon session considers the use of the ECHR in relation to specific people and issues: children, housing, mental health, prisoners and Travellers. Breakout sessions on each of these areas will be held with a chairperson and speakers representing both jurisdictions. Michael Finucane will then reflect on whether there is in fact equivalence of protection under the ECHR North and South.
The conference is FREE (including lunch) for all legal practitioners, non-governmental organisation staff, legal academics, law students and anyone else interested in the development of public interest law in the North and South. CPD Points are available.
Download the conference agenda here.
Register NOW online here.
You are cordially invited to the launch of Roadmap to Asylum Reform by Mrs. Justice Catherine McGuinness on 13 September at 10.30 am in Buswells Hotel, Molesworth St., Dublin 2.
The Irish protection system is fraught with lengthy delays and expensive legal proceedings. For applicants, many of whom have gone through terrible ordeals before they arrive in Ireland, it means years of living in uncertainty. The result is a system that bears an unnecessary human and financial cost, which serves neither applicants, the state, nor the taxpayer.
We now have an opportunity to achieve a reform that will end the misery and needless waste of public funds inherent in the current system. The Irish Refugee Council has produced a roadmap for an asylum system that embodies the principles of transparency, fairness, and efficiency, as well as representing value for money.
RSVP to Sharon@irishrefugeecouncil.ie / 01 764 5066 / 085 8585 510
The Irish Penal Reform Trust is delighted to announce that Minister Shatter will present IPRT's Annual Lecture in the evening of Friday 16 September, 2011 at 6pm.The evening will be chaired by Judge Catherine McGuinness and the Questions and Answers session with the Minister will be hosted by Colm O'Mongáin, editor and presenter of RTE's This Week programme.
The event will take place in the Presidents' Hall, Law Society of Ireland, Blackhall Place, Dublin 7.
For more details, or to reserve a place, please contact Mary Gaffney at 01-8741400 or email: info@iprt.ie
The International Bar Association is pleased to present to you the full programme and registration details for the up-coming 'Business and Human Rights Conference' entitled 'Implementing the UN guiding Principles' taking place at Clifford Chance LLP, Canary Warf, London, England on 15-16 September 2011.
This conference brings together experts from academia, business, governments, international organisations, private legal practice and the non-profit sector, to discuss the opportunities and challenges associated with implementation of the UN Guiding Principles drafted by Professor John Ruggie.
Topics will include:
- The State duty to protect human rights
- Liability for corporate human rights abuse
- Discharging the corporate responsibility to respect
- Special panel discussion on human rights due diligence
- Conflict zones
- Non-judicial grievance mechanisms
The event will also include input from speakers and commentators including opening comments by Professor Robert McCorquodale (British Institute of International and Comparative Law) and a dinner address by Ambassador Luis Gallegos (Ambassador of Ecuador to the United States; Member of the Global Leadership Group convened by Professor Ruggie in 2008; Former Vice-Chair, UN Commission on Human Rights; Member of the UN Committee Against Torture). Attendees will also have the opportunity to attend a social function giving ample time for networking.
Click here for more information on this event.
Legal Research Officer (Immigration) - Part-time
The Public Interest Law Alliance (PILA) seeks to employ a solicitor or barrister on a half-time (20 hours per week) basis for a contract of twelve months' duration. The successful candidate will be charged with compiling a database of current legal information relevant to practitioners in the field of immigration law in Ireland.
Applicants must have a degree in law and/or professional legal qualification; thorough academic knowledge of and practical experience in immigration law; a proven capacity to read, analyse and distil relevant legal principles from case law; and excellent interpersonal skills. Experience of working with databases desirable.
Applicants should submit a curriculum vitae and covering letter to larry.donnelly@flac.ie.
Click here to see for more information on this job.
The Northside Community Law Centre (NCLC), an independent law centre offering free legal information and advice to members of the public that cannot afford assistance, is seeking to appoint a full time Senior Administrator on a one year fixed term contract (subject to funding).
The ideal candidate will have a third level qualification, experience managing a team, experience managing a website and possess strong administrative and IT skills. The successful candidate will have excellent communication skills and will liaise with all external service providers. Experience in implementing Health & Safety policies is desirable.
The position is based in Coolock, Dublin 17 and working hours are 9.30 - 5pm Monday to Friday. The salary offered with this contract position is commensurate with experience.
For further details and an application form (CVs alone will not be considered) please email: cjackman@nclc.ie
Completed application forms should then be sent with CV and a cover letter/personal statement to: cjackman@nclc.ie or by post to: Carmel Jackman, Northside Community Law Centre, Northside Civic Centre, Bunratty Road, Coolock, Dublin 17.
The closing date for receipt of applications is Friday 9 September 2011 at 5pm. Interviews will be held during the week commencing Monday 19 September 2011.
Click here for more information on this job.
The Legal Ombudsman is a new organisation, set up under the Legal Services Act 2007. The Legal Ombudsman is an independent of the legal profession. People can come to the Legal Ombudsman if they are unhappy with the service provided by lawyers or others providing legal services and they have not been able to sort the matter out with the lawyers themselves. Their aim is to provide a complaint handling service that is fair, accessible, and easy to use and which focuses on resolving complaints informally and quickly.
On behalf of the Legal Ombudsman, Investigators work in the Resolution Centre and focus on bringing parties to a complaint to an informal resolution as quickly as possible. Investigators work in small teams under the guidance of a team leader. Investigators will come from a wide range of backgrounds and experience. They will be provided with initial training in systems, processes and legal content, with emphasis on investigative skills and facilitating resolution. Investigators will continue to develop their skills and experience over time progressing through the levels of a competency matrix.
An Investigator should be able to take on any case; however, experienced Investigators may develop in-depth knowledge in a particular area. The objective in all cases that come to an Investigator is to reach a resolution to the dispute. The Legal Ombudsman has a statutory mandate to resolve disputes however if either party is unwilling to engage in informal resolution we will investigate the complaint acknowledging that the consumer has a right to an Ombudsman decision.
Click here for more information on this job.
The Children's Rights Alliance and the Irish Council for Civil Liberties (ICCL) intends to commission a practising legal practitioner with specialist children's rights experience to research and draft core sections of a Know Your Rights pack for children and young people (all those under 18 years).
Applications will be by way of curriculum vitae accompanied by a short covering letter. Applications should be submitted by 5pm on Monday, 19 September 2011 to:
Tanya Ward
Deputy Director
Irish Council for Civil Liberties
Tel: (01) 799 4506
Email: tanya.ward@iccl.ie
To get the full tender document, and if you have any queries in relation to this tender, please contact Walter Jayawardene, Communications Manager, at the ICCL and Project Manager for the Know Your Rights programme. Tel: (01) 799 4503. Email: walter.jayawardene@iccl.ie
Overall Purpose of the Role
To be responsible for a range of highly regarded publications which provide a vital resource for lawyers and human rights activists. The post holder will also help to shape INTERIGHTS wider communication and outreach work and have responsibility for development and maintenance of INTERIGHTS website. Together with strategic litigation and capacity building activities, INTERIGHTS publication and information dissemination work is ultimately designed to strengthen human rights jurisprudence and obtain redress for people whose rights have been violated.
Overall Objectives (Scope)
- To develop and maintain INTERIGHTS regular and occasional legal publications
- To develop and maintain INTERIGHTS website, which hosts two searchable legal case databases
- To contribute to development of INTERIGHTS wider outreach work through the production of a range of informational and promotional materials
To get more information and an application form please visit the INTERIGHTS website.
Please send your completed application form to the email address below, stating the job title in the subject field of the email.
Closing date: 20 September 2011. Interviews will be held on 29 September 2011. Late applications will not be accepted.
INTERIGHTS, Lancaster House, 33 Islington High Street, London N1 9LH. Fax: + 44 207 278 4334; Email: jobs@interights.org
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