Status Brief
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2009
S v H.S.E. (2009) IEHC 106 (11th February 2009) Judgement of Edwards J
- “The patient (was) alleged to be detained unlawfully at the Mercy University Hospital, an institution operated by the (H.S.E), in purported pursuance of an order made by (the H.S.E.) pursuant to s. 38 of the Health Act, 1947…which provides for the detention and isolation of a person suffering from an infectious disease who is a probable source of infection.”
- “the patient’s detention, although initially unlawful, became lawful once she was delivered into the custody of the staff at the Mercy University Hospital who were directly authorised by the s. 38 order to isolate her there in a specialised negatively pressurised room.”
- “The key criterion is the need to ensure “effective” isolation. The section expressly provides that the power may only be invoked in cases where the patient cannot be effectively isolated in their own home. It is implicit in the section that the legislature intended that the power should be invoked sparingly and that it should not be resorted to save where absolutely necessary. It is difficult to conceive of any circumstances where it would be necessary to invoke the power save in the case of patient non co-operation with a proposed regime of isolation. Even in a case where a patient’s home is physically, or otherwise, unsuitable to provide effective isolation, it would be unnecessary to invoke the s. 38 power of detention in the case of a co-operative patient. He or she could simply be admitted to, and isolated within, a hospital or other suitable place on a voluntary basis.”
- “The power created by section 38 supports an important public interest objective, namely, it assists in safeguarding against the spread of particular infectious diseases amongst the general population by facilitating, where necessary, the compulsory effective isolation of a person who is suffering from such a disease.”
- “While it might be desirable that the section should contain more specific safeguards towards the defence and vindication of a detainee’s personal rights, the absence of such safeguards does not, of itself, render the section unconstitutional. A detainee may have recourse at any time to the High Court within the context of Article 40.4.2˚ of the Constitution for the purpose of seeking an inquiry into the lawfulness of his or her detention.”
- “The combination of (i) such safeguards as already exist within the section, (ii) the presumption that the section will be operated constitutionally, and (iii) the existence of a readily accessible remedy for the person affected if it is not in fact operated constitutionally, provides an adequate level of protection for the personal rights of detainees. I therefore dismiss the claim of constitutional invalidity.”