Dear all,

While it may fall outside the core subjects discussed on this list,
the judgment of Humphreys J in the Irish High Court in AB v CD may be
of interest.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/edbb4e2cabfa849e8025804c004c5788?OpenDocument

It is certainly worthy of the severest criticism in my respectful view.

The facts were that a prisoner AB had apparently attempted suicide. He
was refusing treatment in a hospital and was attempting to further
injure himself.

Humphreys J was not satisfied on the apparently rather meagre evidence
presented that the prisoner lacked capacity. Instead of directing that
further reports be prepared or indeed offering the parties an
opportunity to put in further evidence, Humphreys J went on to
consider the question whether a prisoner of full age and capacity
could be subjected to forceable restraint and medical treatment, in
the exercise of the inherent jurisdiction of the High Court.

From the judgment, it seems that no party represented in Court argued
for the proposition that a prisoner of full age and capacity should
not be subjected to forceable treatment, on the basis that they have
the same rights of bodily integrity, autonomy and human dignity as
anyone else. It is fair to acknowledge that such issues were
considered in the judgment.

In any event, Humphreys J declined to follow English and Irish cases
on this issue, which he regarded as having been significantly
influenced by a Calephornian decision decided pursuant to a specific
Calephornian statutory provision. Humphreys J sited a significant body
of US decisions in support of his position and concluded that previous
decisions in England and Ireland were based in part at least on a
misunderstanding of the US position. He went on to make orders giving
the medical authorities liberty to treat the prisoner, by force if
necessary.

Significant emphasis was placed on what the Court considered to be the
prisoner's possible attempt to cheat justice and/or frustrate a Court
order, with references to the suicides of Goerring and Robert Ley at
Nurenbourg!

The Court was also concerned by the affect on order within prisons if
such a ruling were not made, though I do not think the point was fully
developed.

I think this decision objectionable as a matter both of precedent and
principle. As a matter of principle, I think the conclusion reached
morally repugnant. The emphasis in the judgment on the danger that by
refusing life saving treatment an offender would cheat justice or
frustrate the order of the Court is, with the utmost respect,
profoundly unpersuasive. As a matter of precedent, it is striking that
Humphreys J felt it right not to follow a recent judgment in the Irish
High Court as well as apparently settled English law, expressly
approved in that judgment in this case. Certainly from the judgment)
it appears that arguments against forceable treatment were not made.

While the body of US law referred to in the judgment, is significant I
think it unlikely that previous Courts were wholly unaware of those
cases, as Humphreys J appears to suggest. Surely it is far more
probable that previous judges referred selectively to what is after
all only persuasive authority and authority from what is quite a
different legal context at that.

Quite apart from that, I cannot accept (with respect to those who
think differently) that when we look for persuasive US decisions (many
of which are of the highest value), cases authorizing certain
practices at Guantanimo Bay should appear on our list.

Nor does this judgment address the well developed law concerning the
right to bodily integrity in the Irish Constitution. There is a
reference to the ECHR and Humphreys J goes on to say that he does not
see why the rights enjoyed under the Constitution should be more
extensive. With respect, rights enjoyed under Irish Constitutional law
are different and may be more extensive. That can be demonstrated as a
as simply as by comparing the relevant texts - quite simply the Irish
Constitution guarantees more (and somewhat different) rights than the
ECHR. Were the point in doubt, cases could be sited to prove the
point.

If allowed to stand, this judgment will be a blot on Irish law for
years to come.

With apologies for the lengthy post/rant. If anyone disagrees, I'd be
interested in their views.

Kind regards

Ger