1. 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

2. 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

3. 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

4. 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

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

6. Non- detention vindication of welfare rights
If vindication of welfare rights can require detention, what else can it require?
PMcD 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

7. 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?