It may be impossible for the Government to mount a serious response to an avian flu outbreak without changes to the Constitution.
The Government would probably not be able to introduce the emergency measures needed to cope with a bird flu pandemic, the dean of the faculty of law at NUI Galway Donncha O'Connell said yesterday.
Mr O'Connell was speaking in Dublin at a conference organised by the Irish Council for Bioethics on the ethical dilemmas arising from a flu pandemic.
The Constitution affords Government the power to introduce a state of emergency, which gives it additional powers that, in part, diminish individual rights, he said. The Constitution only allows this, however, in the event of war or armed rebellion, so these extra powers would not automatically be available during a medical crisis such as a pandemic.
"I am arguing in favour of emergency measures, for emergency legislation," the former director of the Irish Council for Civil Liberties stated. "We should amend Article 28 of the Constitution."
If a constitutional referendum allowed emergency powers to be invoked during an event such as a flu pandemic, then legislation could be introduced to set limits and protect personal freedoms.
As things now stood it would probably be for the courts to decide on the ethical issues that would arise during a pandemic, Mr O'Connell said.
Legal challenges could be raised about enforced quarantines and access to medical treatments and vaccines. "It would be preferable not to have the judiciary deciding these issues," he said. "These arguments shouldn't be happening. You don't want the courts to become a licensing body for the access to treatment programmes. I think that is a depressing prospect," he added. "We should appreciate the problems and legislate accordingly."
A constitutional referendum would afford the Government an opportunity to educate the public about the risks associated with a flu pandemic. It would allow the Government to explain what actions would be necessary and inform the public about what would be required of them.
Legislative changes would also improve protections for the individual in the event of a state of emergency. The current situation did not provide "adequate safeguards", he said.
