The problem of deprivation of liberty as a

The problem of deprivation of liberty as a vindication of rights Alan D. P. Brady TCD Law School The Constitution at 80 University of Limerick 11 November 2017

Overview • • • Conflicts of constitutional rights Detention of children as vindication of welfare Detention of adults as vindication of welfare Non- detention vindication of welfare rights The character of constitutional welfare rights

Conflicts of constitutional rights • • • People (DPP) v Shaw (1982) Attorney General v X (1992) Rights come into conflict Harmonise if possible Establish priority if not possible

Detention of children as vindication of welfare • DG v Eastern Health Board (1997) • Child’s rights could not all be vindicated • Liberty gave way to welfare rights (G v An Bord Uchtála (1980) • Conflict of rights in one person • Concerned penal institution, not therapeutic detention (FN v Min Ed (1995) • DG v Ireland (2002) – Art 5

Detention of adults as vindication of welfare • Inherent jurisdiction detention ▫ HSE v JO’B (2011); HSE v VF (2014); HSE v JB (2015) ▫ Vindicating rights – no capacity ▫ On application of the State • Mental Health Act 2001 – HSE v MX (2011) • Wardship detention – Re D (1987); Re FD (No 2) (2015); Re AM (2017) ▫ S. 9 Courts (Supp Prov) Act 1961 ▫ Vindication of the person

Non- detention vindication of welfare rights • If vindication of welfare rights can require detention, what else can it require? • PMc. D v Gov X Prison (2015) • Possibility of vulnerable persons jurisdiction • TD v Min Ed (2001) ▫ Mandatory order and Policy • VQ v Judge Horgan (2016) ▫ TD not applicable to s. 47 Child Care Act 1991 • Statutory powers? – Wardship

The character of constitutional welfare rights • • Positive obligation – detention and treatment Positive obligation – treatment only? Hohfeld – claim-right vs liberty/privilege Not a liberty/privilege if can require detention Claim-right – duty All detention applications moved by the State Vindication of welfare rights on person’s application? • If not, are these rights at all?