The Mental Health Act 2001
Out of Mind, Out of Sight; Are the Human Rights of Irelands Mental Health Service Users being vindicated or violated, in relation to Detention and Medical Treatment under the Mental Health Act 2001, as amended and through current Irish laws and policies?
by Joanne McInerney Solicitor & Notary Public, University College Dublin September 2013
Table of Contents
Section 1: Historical Background
- The Evolution of Human Rights with Mental Health Rights
Section 2: The Legislative Framework
- The Medical Treatment Act 1945: The Ancien Regime.
- The Mental Health Act 2001; a New Dawn?
Section 3: Admission & Detention
- Involuntary Detention; Coercion or Compassion?
- Voluntary Detention- Internment without Trial?
Section 4: Medical Treatment & Mental Healthcare
- Conditions of Confinement
- The Right to Mental Healthcare and the UN Convention on the Rights of Persons with Disabilities.
Section 5: Informed Consent & Capacity to Mental Medical Treatment
1.Informed Consent to Medical Treatment.-DoctorPaternalism v Patient Autonomy ?
2. Capacity -Involuntary Patients v Voluntary Patients/Incapable Compliants?
Section 6: Children
- The Human Rights of the Child
- Admission & Detention
- Medical Treatment
Conclusions & Recommendations- A New Way Forward ?
There is no health, without mental health (Lavikainen et al, 2001). Mental health law and the human rights of mentally ill patients have progressively become an area of significant legal concern, not least because it is one of the most recent human rights to be recognised by society. At least one in four people in Ireland will be affected by a mental health illness within their lifetime, albeit to varying degrees of severity. Human rights advances have been made internationally and domestically states have introduced reforms to their mental health policies in an attempt to comply with their obligations, as members of the United Nations and the European Union.
Human rights are universal and inalienable; countries cannot grant or deny these rights. The importance of international human rights in the area of mental health disability are that they can safeguard the individual against domestic abuses of their human rights, which may not otherwise be covered or protected by a states internal constitutional framework. There are three relationships which have been identified between mental health and human rights 1) how mental health policies affect human rights, 2) human rights violations affecting mental health and 3) the positive promotion of both mental health and human rights being mutually reinforcing. The principle human rights issues at stake for the mental health service user are autonomy, privacy, bodily integrity, property and liberty.
The UN Declaration on Human Rights is based on the principle that all human beings are born free and equal in dignity and rights. That being the case, all human beings are equal and none are more equal than others. Civil and political human rights under the International Convention on Civil and Political Rights (ICCPR) protect against cruel, inhuman and degrading treatment in detention and medical treatment. These rights include the absolute human rights such as the right not to be treated in a degrading or inhuman way and the right to life?together with such limited rights as not to be subject to arbitrary arrest or detention and the right to liberty. Such limited rights can only be interfered with in a lawful manner that is proportionate, where there is a legitimate aim. The International Convention on Economic, Social and Cultural Rights (ICESCR) further protects the individuals rights to family protection, adequate standards of living, the right to share in scientific advancement and in particular under article 12 of ICESCR, the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Further to this, the World Health Organisation has declared the right to the enjoyment of the highest attainable standard of health, to be a fundamental human right (WHO:2006).
An analysis of the impact of recent international mental health reforms is well overdue in Ireland and serious human rights issues exist, in terms of the role that Ireland has played as the protectorate of its citizens afflicted with a mental health disability. For the purpose of this research paper, I have categorised and examined the human rights and legal standing of four distinct groups of mental health service user in Ireland; 1) voluntary, 2) involuntary, 3) incapable compliant and 4) children.
In section 1 of this paper; I propose to initially trace the historical origins of this recently recognised human right from its inception internationally through to its current status and position in Ireland.
It is a matter of grave concern that currently as it stands, Ireland appears to have cut short its development of the law in this area since the enactment of the Mental Health Act 2001 in 2006. Section 2 of this paper, will review this legislative framework past and present in Ireland. The Mental Health Act, 2001 was drafted in furtherance of human rights standards and international best practice particularly in light of the fact that the Mental Treatment Act 1945 contained no appropriate safeguards for the mental health service user such as the right to review of detention. It would appear that Irelands Mental Health Act 2001 is now out of step and in contravention of numerous human rights as protected within recent conventions and reports from the United Nations and a large body of case law from the European Court of Human Rights.
Specifically, I will then turn in detail to the areas of admission and detention, both involuntary and voluntary in Section 3, where I intend to investigate in detail the provisions of the Mental Health Act 2001, in relation to the admission and detention of mental health patients and assess whether or not the law in theory and practice vindicates or violates their human rights. The main aspects of the 2001 Act include a best interests test?and the creation of the Mental Health Commission and Mental Health Tribunals, together with standards and procedures for such approved centres. I intend to assess the compatibility of these working bodies with their proclaimed standards in light of the human rights that they impact on.
The provisions of the Mental Health Act 2001, regarding conditions of confinement and medical treatment for mental health service users in Ireland will be assessed in section 4. Throughout this section, I propose to review the legal and social position of the right to mental health and the recent UN Convention on the Rights of Persons with Disabilities (CRPD) within Ireland.
Section 5 will examine what constitutes an informed consent from the mental health service user. Consideration will be given to whether we are finally moving away from doctor paternalism in pursuance of the patients right to self determination, and whether or not Ireland can hold itself out as in compliance with international and domestic human rights standards in respect of same. I will then look closely at issues of capacity and contrast the legal position between the various categories of mental health service user in Ireland with regard to same and review in brief the proposed capacity legislation.
Lastly, but by no means least, section 6 will examine the position of childrens human rights within this disjointed and defective legal system as significant human rights issues remain surrounding the admission, detention and medical treatment of minors in Ireland.
Finally, I will engage in a comparative analysis between the standing of Ireland in this area with other countries internationally, who are also members of the United Nations and/ or the European Union. With regard to this analysis, I will not be putting forward a comparison of Ireland with third world or low to middle income countries outside of the EU and/ or UN as this could not provide an accurate comparison. The parameters of this study will also be restricted to the mental health service user within the civil setting and will not include any assessment of the criminally insane or status of the mental health service user within a criminal setting at this time (although I have very occasionally used case law which may overlap on the criminal mental health service user, to emphasize a particular human right issue).
My recommendations and conclusions from this study will be put forward based on a legal critique of Irelands standing against international standards and best practice with proposals for more effective and efficient reforms of the mental health policy in Ireland which could ensure conformity with our national and international human rights obligations. In furtherance of this, I will seek to introduce proposals, to shift the balance of power from a medical and paternalistic model to a more patient focussed and social model of reform in the medical treatment and detention of mental health service users in Ireland, incorporating proven human rights based approaches to enhance same.
Section 1: Historical Background
Chapter 1: The Evolution of Human Rights with Mental Health Rights
It was not until the opening of St. Patricks Hospital in Dublin in 1757, that provision was first made in Ireland for the mentally ill. Patients were put away or detained for their own good and away from societys gaze in a controlled environment without any great emphasis on their medical treatment. By 1961, Ireland had reached the unenviable state of having detained a higher proportion of its population for psychiatric illness than anywhere else in the world (Walsh: 1968). This traditional doctor, paternalistic regime, which focused on hospitalization and medical treatment, was to the detriment of recovery and rehabilitation of the patient through rights based approaches to disability such as community living and alternatives treatments.
Remarkably, internationally disability law has only become a human rights issue in the last twenty-five years. The United Nations International Year of Disabled Persons, 1981 placed disability law squarely on the world stage and the subsequent Decade of Disabled Persons 1983-1992 followed the World Programme of Action Concerning Disabled Persons. The General Assembly adopted the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (the MI Principles) in 1991.
So that by the year 2000, tangible reforms in this area had started to evolve intended to provide equal opportunities for disabled people and to combat their segregation, institutionalization and exclusion as typical forms of disability based discrimination.  Human rights courts across the world began to hear and consider mental disability law issues. The groundbreaking Wintertrep v Nederlands case under the European Convention on Human Rights (ECHR) paved the way for legal recognition of the human rights of the mentally disabled person. Subsequent decisions of the European Court of Justice (ECtHR), the Inter-American Commission on Human Rights and the African Commission in the decades that followed provided the crucial legal link between human rights and mental disability law, which provided the necessary recognition and enforcement mechanisms to call for their vindication.
Ireland signed the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1992. This created a supervisory body for enforcement of the standards set out in particular where persons were/ are deprived of their liberty. Under UNCAT, Committees visit the places of detention and where its recommendations are not carried out it can make public statements and submit annual reports to the Council of Europe. Ireland was inspected in 1993, 1998, 2002, 2006 and 2010. In 2006, the Irish government of the time published their A Vision for Change. This programme although a radical move towards the rehabilitation approach, was not progressive enough and compliance with the service users human rights is still at abeyance due to the continuance of the medical emphasis through psychiatric control of local mental health services which is still placed throughout the?Vision for Change. Aside from this, the Vision for Change?has still not even been implemented and is now out of date, as advances in the areas of medical treatment and the human rights of mental health service users have moved on internationally, leaving Ireland well behind.
The UN Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006. The participation of service users in the drafting and implementation of this convention has been nothing short of remarkable given the life difficulties placed before these parties. Their cry of Nothing about us, Without us!?has opened up such participatory processes by placing the service users (to which such conventions are framed to protect) directly at the conference table. Fundamental aspects of this convention contain references to respect for inherent dignity and non-discrimination. The convention goes on to highlight its prohibition on torture or cruel, inhuman or degrading treatment or punishment and the freedom of disabled persons from exploitation, violence and abuse. This convention embraces a new founded social type of law away from the previous medical model of law, which seeks to bring those suffering from forms of mental disability away from the social stigma, discrimination and isolation within society to a place of freedom, dignity and basic human rights. At last the prejudicial distortion of attitudes towards mental disability due to sanism?had begun to unravel.
The reality is however that despite Irelands accession to the CRPD treaty, it still refuses to ratify same, even against the backdrop of huge protest from all parties affected directly and indirectly by its non-implementation. This injustice is further compounded by Irelands dualist legal system, whereby international treaties or agreements do not become part of domestic law unless they have been enacted by statute. Where there is a conflict between the constitutional interpretation and a European interpretation at domestic level, it is likely that a constitutional interpretation will prevail. UN law cannot override Irish law; however it does have a persuasive effect which means that its recommendations are usually implemented. Until an international measure is incorporated into Irish law it can only have a limited effect. This street angel, house devil, approach has inadvertently allowed for a double standards system to exist, of which the legal standing of mental health law has been but one of the many casualties.
Section 2: The Legislative Framework
Chapter 2: The Medical Treatment Act 1945- the Ancien Regime.
Prior to the enactment of the Mental Health Act 2001, the laws and procedures governing the detention and treatment of mental health service users in Ireland was administered under the Mental Treatment Act 1945, as the primary legislation governing this area. The Health (Mental Services) Act 1981 although passed was never enacted. Under the Irish Constitution, article 40.4.2 states, that
no citizen shall be deprived of his personal liberty save in accordance with the law.
Detention under the 1945 Act was as a voluntary patient or an involuntary patient; which was further subdivided into temporary patients or?persons of unsound mind. Voluntary patients could leave their detention after giving seventy-two hours notice, if during that time no order was made to convert their status to that of a temporary patient. Temporary patients were detained for up to six months and once in the hospital an indefinite order could be made for the patients involuntary detention. There was also a significant difference in the admissions procedures to be followed for public patients and private patients.
In the case of OR v M,  the appellant was detained involuntarily after her husband sought her committal following the breakdown of their marriage. The doctor who provided the evidence supporting her detention was not the appellants treating doctor and in fact he had only based his assessment on her from the garden gate of the property without interviewing her or putting questions to her. The Supreme Court upheld the detention. The regime that existed constituted a clear example of a parens patriae model of committal, where a large emphasis was placed on the paternalistic approach of doctor knows best.?There were little safeguards in place or independent reviews of detentions
Under ss 185 and 186 of the Mental Treatment Act 1945, a temporary patient was defined as a person for whom detention was required, where it was believed that no more than six months treatment was necessary for recovery. A person of unsound mind was defined as a person requiring detention for protection and care and who was unlikely to recover within the six months, and as such could be detained for an indefinite period of time. The only safeguards in place were by way of a habeas corpus application, however as reflected in most cases, the judges deference was often towards the doctor?s evidence in support of the detention. In the case of In re Philip Clarke  a habeas corpus application was sought where the appellant stated that he was being unlawfully detained as there had been no judicial determination of his case between his arrest and his detention. The court ruled that the evidence of the medical officers was sufficient and his detention was upheld.
The regard of the Irish courts to a paternalistic approach to secure protective detentions has been seen continuously in domestic constitutional litigation. In BF v Clinical Director of Our Ladys Hospital, Navan, the High Court held that the human rights of dignity, bodily integrity, privacy or autonomy were limited to decisions of medical personnel, where in their best interests. This line of reasoning was further followed in Gooden v Waterford Regional Hospital  and LK v Clinical Director, Lakeview Unit, Naas General Hospital. In Croke v Smith (No. 2), the Supreme Court found that
pursuant to Article 40.1 of the Irish Constitution, that the 1945 Act, satisfied every reasonable requirement and did not constitute an attack upon the personal rights of the citizen. 
This decision flew flat in the face of the X v United Kingdom case at the ECtHR, where the court found that the applicant had a right to automatic and periodic judicial reviews of his detention. The gross disparity between the decisions in Croke v Smith (No. 2) and X v United Kingdom highlighted starkly the gap in human rights protections afforded to those under Irish domestic law and international law at EU level.
As a result, this antiquated framework began to disentangle slowly due to the increasing influence with which the European Convention on Human Rights began to have over Irish law; Ireland had agreed to be bound by the findings of the European Court of Human Rights where such determinations involved Ireland. Further to this the European Convention on Human Rights Act 2003, then granted a legal recognition to the conventions provisions within domestic courts.
Under article 5 of the ECHR, the right to liberty although a limited right, provides that detention must contain an expeditious system for review of that detention. In particular, the case of Croke v Ireland,  was a turning point, where the court in Strasbourg found against the Irish Supreme Courts ruling, that the plaintiffs right to an independent review of his detention had not been violated.
Chapter 3: The Mental Health Act 2001: a New Dawn?
The Mental Health Act 2001(MHA 2001) replaces most of the provisions of the Mental Treatment Act 1945, and all of the provisions of the Mental Treatment Act 1953 and 1961, the Mental Treatment (Detention in Approved Institutions) Act 1961 and the Health (Mental Services) Act, 1981.
Under the 2001 Act, the distinction between public and private patients has been obliterated and any decision to involuntarily admit a patient must be done ?in their best interests? with due regard for their dignity and autonomy. However the definition of mental illness under section 3 of the act does not include those with a personality disorder or those suffering from addiction despite including those suffering from an intellectual disability. Under the 2001 Act, the definition of a person suffering from a mental disorder is much narrower than that under the 1945 Act and under common law. By comparison the mental health legislation in England and Wales, which has been in place since 1983, now plans to include those suffering from addiction and those with personality disorders into their definition frameworks.
Although divided into six parts, the main parts of the MHA 2001 of concern are part two which deals with involuntary admission, part three involving review of detention orders and part four regarding consent to medical treatment. With regard to the initial involuntary admission, the applicant requests that a medical practitioner examine a patient within twenty four hours and if the doctor makes a recommendation for admission, it is valid for seven days. Once in the hospital, the patient must be examined by a consultant psychiatrist within twenty four hours, who may make the admission order. If a patient admits themselves to the hospital voluntarily, they can then leave the institution after giving twenty four hours notice to do so provided that in the meantime, no order is made to detain them involuntarily, which must be on foot of the evidence of an independent psychiatrist.
Under part three of the Mental Health Act 2001, once an order for admission or renewal of detention is made a copy of the order must be sent to the Mental Health Commission. This commission oversees the Mental Health Tribunals and the panel of psychiatrists that give second opinions under section 18. The commission also oversees the approval of the various psychiatric institutions or approved centres. Once the order is received by the commission the patient is assigned a legal representative and consultant psychiatrist who must report back to the commission within twenty one days regarding the detention. The tribunal considers admissions, renewals and certain forms of medical treatment. The tribunals will also assess the procedural requirements of the detention and whether in fact the patient is ill or requires detention. Decisions of the Mental Health Tribunal can be appealed to the Circuit Court. Part four of the Mental Health Act 2001 concerning consent to treatment sets out that treatments must be voluntarily consented to save where not possible and through informed consent and will be examined closer in section 5 of this paper.
The ECtHR has produced many influential and landmark cases in the area of detention such as Winterwerp v The Netherlands, where the court found that a finding of a mental disorder must be made before a patient could be detained. In X v UK it was determined that a patient is entitled to take proceedings at reasonable intervals before a court to test the lawfulness of their detention and in accordance with article 5(4) of the European Convention on Human Rights.
Article 40.1 of the Irish Constitution 1937, states that,
all citizens shall, as human persons, be held equal before the law.
In terms of detention and medical treatment it is important that mentally disabled persons are considered as equal in their human rights to those persons not so afflicted. Articles 6 and 7 of the Irish Constitution 1937, deal with the rights of all persons to due process with regard to criminal charges however the constitution is silent on the fate of those against whom a charge of mental disability is brought, particularly in circumstances where detention is deemed necessary.
Under the MHA 2001, the Mental Health Commission was established to oversee the implementation of the act. The act provides for the first time a definition of a mental disorder under section 3 of the 2001 act, under three classifications 1) mental illness, 2) dementia or 3) intellectual disability. The first two classifications are purposely ambiguous to allow for a wide discretion on their application. However, the third classification is disparaging and unhelpful as in the writer?s view an individual suffering from an intellectual disability does not necessarily require psychiatric treatment nor does it follow that a person suffering from a mental disorder will have intellectual difficulties.
Despite the enactment of the Mental Health Act 2001, the Irish courts have still sought to revert to their favouritism of the paternalistic approach to their interpretation of its provisions such as under section 3(1) of the 2001 Act, where it must be shown that the person posed a threat to society or to themselves for that person to be detained. In MR v Byrne, the detained showed no evidence of this, however in the High Court, O|Neill J went on to set out a test for a level of probability?to validate the detainees confinement.
The best interests?test under section 4 of the MHA 2001, also provides for the making of any decision under the act being conditional upon the best interests of others to whom the subject might harm, if the decision to detain them is not made. This subjective approach is further affronted by the tokenistic reference made to the human rights principles of dignity, bodily integrity, privacy and autonomy in s 4(3) of the act.
Despite the statutory time-limits set out in the 2001 Act, the Irish courts have determined that a failure to adhere strictly to the procedures will not necessarily deem a detention to be invalid where no injustice has been caused as per JH v Lawlor.? So it follows, that there exists a remarkable judicial discretion as set out in the legislation to achieve a required outcome with very little consideration being given to such clear violations of the detainees human rights.
The courts have however made it clear that substantive oversights in adherence to the procedures cannot allow for the continued detention of a person as in WQ v MHC. However, an interesting adaption of all of the interests concerned evolved in the case of Ann v Kennedy, where the release of the detainee was ordered but a delay was made in making the release order until such time as proper consideration had been given to secure the continued detention of the detainee in her best interests.
A more successful line of appeal may be to make an application for judicial review through the Irish courts regarding the lack of fair procedures and natural justice as opposed to the traditional habeas corpus procedure for unlawful detention in contravention of the Constitution or Convention. Interestingly, in England and Wales, applications of habeas corpus are generally taken as a last resort, those applicants preferring instead to make applications for judicial review. However, given the reliance on domestic constitutional law in Ireland, this may not prove as popular in Ireland as it has done in the United Kingdom. Arguably, though given the minute success rate of Irish applicants in their High Court habeas corpus ventures, it may be well worth their considering a different tack.
Section 3: Admission & Detention
Chapter 4: Involuntary Detention, Coercion or Compassion?
The majority of mental health service users for whom detention is warranted are a minority. The Mental Health Commission?s annual consensus on 7 November 2007 showed that of those so detained, 84.4% of the mental health patients were voluntary and 10.1% were involuntarily detained. Others included wards of court or were the subject of court orders.
The right to liberty and security of the person as guaranteed under article 5 of the European Convention on Human Rights (ECHR), is a limited right and can be deprived to persons of unsoundness of mind. However a speedy review of detention by an independent court or tribunal is necessary. Detention cannot be arbitrary under article 5(4) of ECHR as per Van der Leer v The Netherlands, where the judge had not heard representation from the patient or a representative on the patient?s behalf. Detention has also been held to be arbitrary where there was a failure to use proper lawful procedures in DSE v The Netherlands.
From the findings of the European Court regarding Article 5(1) (e) there appear to be three minimal conditions to justify a person?s detention 1) objective medical evidence that the person is of unsound mind, although no definition has yet been put forward as to what constitutes unsoundness of mind, 2) the mental illness must be of a kind to warrant compulsory detention and 3) the validity of continued detention must be grounded on the persistence of the mental disorder. These standards can be overridden in emergency situations, however a proper medical assessment of the detainee must take place as soon as possible after the detention has taken place.
Article 5(4) of ECHR provides, that everyone who is deprived of his liberty on the grounds of mental disability must have the right to take proceedings at reasonable intervals before a court to put in issue the lawfulness of his detention, in a speedy manner.
Legal representation must be provided by the state at the states expense. The landmark case of X v UK, provided that the availability of a habeas corpus application was not a satisfactory form of judicial review.
The legal position remained unchanged in Ireland until the decision in Croke v Smith (No.2).The Supreme Court held that the detention did not require an automatic review mechanism by an independent tribunal because of the obligation placed on a person in charge of a district mental hospital to discharge a patient who had recovered. The case was brought to the ECtHR and prior to the courts finding of a breach of the applicants article 5 right to liberty, the Irish government entered into a friendly settlement before the hearing and thereafter the MHA 2001 was drafted.
There was no individual judicial review of detention prior to the MHA 2001 and this legal position was upheld In Re Philip Clarke as not posing a violation of the detainees right to liberty. This system showed a common law paternalistic approach where preventive detention was enforced as only under Article 40.4.2 of the Irish Constitution, could a habeas corpus application could be brought to the High Court, to adjudicate on the legality of a detention.
That the detention must be justified on a continuing basis was set out in Winterwerp v the Netherlands. This has transposed into Irish law under the MHA 2001, where there must be the existence of a mental illness for detention to be necessary and there must be a connection between the reasons for the detention and the place of detention i.e. it must have suitable facilities for treatment of the person. However, even very informal examinations as justifying a continued detention, can constitute a medical practitioners expert opinion as per MZ v Khattak.
In the case of SM v Mental Health Commissioner & Others, McMahon, J ruled that the 2001 Act, did not provide for a renewal order being made for an indeterminate period but not exceeding twelve months pursuant to s 15. Emergency legislation was passed to enact the Mental Health Act 2008 to retrospectively correct any such existing renewal orders in place.
Involuntary patients have the right to be provided with information regarding their detention and a written statement of reasons for their detention, outlining their rights during their detention. In MD v Clinical Director of St. Brendans Hospital, no reason for detention was given to a sixteen year old detainee and a renewal order was made before the existing order had lapsed. Despite this, the Supreme Court upheld the detention holding that a Mental Health Tribunal could overlook any irregularities, if it was of the opinion that the substance of the order still stood and that no injustice has been caused. The writer can understand the judiciarys logic to a certain extent, with regard to the vast discretion that is afforded to protect those requiring treatment and further detention in such cases. However, what the Irish courts have failed to understand or even consider is that the breach of an individuals basic human rights is the largest injustice of all.
From the decisions of the Mental Health Tribunals, which are given to the Mental Health Commission, appeals can be brought to the Circuit Court and the High Court where the applicant is of the view that the Tribunal has erred. An appeal can be brought to the Circuit Court on the grounds that the applicant believes that they are not suffering from a mental disorder. Such appeals have regularly proved redundant as often the detention period has expired by the time the appeal reaches hearing in the Circuit Court. Further to this, the court can only then decide on the current state of the mental disorder of the applicant which would clearly have improved by the time the detention is over and the patient released. A better route is to the High Court by way of a habeas corpus application under art 40.4.2 of the Irish constitution. Under such emergency applications the onus shifts to the defendant to prove the person is being legally detained and unlike the Circuit Court route, any aspects of the detention can be challenged. Immediate release can be ordered, however where the applicant clearly requires treatment, ancillary orders can be made to allow for their further detention thereafter if necessary.
Chapter 5: Voluntary Detention; Internment without Trial?
Difficulties arise in categorising the rights of voluntary patients in detention and also those under supervision in community living arrangements as they may not fall under the protections afforded under article 5 of ECHR. However, the scope of interpretation for the application of article 5 protections may be broad enough to incorporate less restrictive types of detention as in Ashingdale v UK.
Despite the large proportion of detainees being voluntary, their legal position is extremely precarious given that the MHA 2001 focuses heavily on the involuntary patient and any legislation that had dealt with the voluntary patient has been repealed by the MHA 2001. Complications now exist given that there are little or no procedures set out for the admission of voluntary patients to approved centres. This is compounded by there being no right to automatic and periodic judicial review of such voluntary detention under the MHA 2001.
In particular issues may arise where a voluntary patient admits themselves and consents to treatment but where they actually lack the legal capacity as a result of their mental disorder. Such incapable compliant patients have also now been referred to as falling into the Bournewood Gap?as a result of the recent English case of R V Bournewood Community and Mental Health NHS Trust, ex parte L. The Court of Appeal held the applicants detention to be unlawful and he was then admitted involuntarily under the 1983 Act. This was overturned by the House of Lords however and the applicant brought his case to the ECtHR arguing that there had been a breach of his right to liberty. The Court found that the applicants rights had been breached under article 5(4) of ECHR, which states that everyone deprived of their liberty shall be entitled to take proceedings by which the lawfulness of their detention shall be speedily decided by a court and his release ordered if the detention is not lawful. This applicant was being treated informally under the basis of the common law doctrine of necessity and did not therefore have available to him any safeguards or procedures of a formal patient so detained.
The Irish MHA 2001, lacks similar safeguards and procedures for the incapable compliant patient. The Irish Law Reform Commission in its report on Vulnerable Adults and the Law, calls for reform in this area. For now this lacuna in the law is to be dealt with in the proposed capacity legislation however same has neither been passed nor enacted as of yet. Unfortunately the legal position in Ireland has not been helped by the recent High Court ruling in EH v Clinical Director St Vincent?s Hospital, where it was held that the definition of a voluntary patient?was wide enough to encompass an incapable compliant patient. This case shows a clear example of the courts reliance on the inherently paternalistic nature of MHA 2001 without any attempt being made to reconcile the obvious issues of capacity or lack thereof and is not in keeping with the human rights of the detainee under the European Convention on Human Rights.
Section 4: Medical Treatment & Mental Healthcare
Chapter 6: Conditions of Confinement
Within the walls of the psychiatric hospital, the authorities have further responsibilities to provide a therapeutic environment and to prevent the neglect and abuse of patients. Article 3 of European Convention on Human Rights (ECHR) prohibits inhuman and degrading treatment. Article 5(1) prohibits arbitrary detention and the UN Torture Convention was enacted to strengthen the protection of persons deprived of their liberty and provides a monitoring system which also includes mechanisms to monitor the conditions in which such patients are confined. However, there are no international standards provided against such inhuman and degrading treatment. The committee can only make recommendations in their reports based on their inspections; however such reports are not legally binding and can only have a moral persuasive effect on the state in question.
Article 3 of ECHR is an absolute right which cannot be limited in any way. However the ECtHR has shown a tendency towards placing a high threshold on the patient to prove that such a violation under article 3 has taken place. Such treatment must be unlawful and of an invidious nature in order for such a finding to be made. This inequality in the balance of power in the relationship between the medical practitioner and the vulnerable patient is further still controlled at EU level in terms of treatment during confinement. The use of restraints and seclusion can be held to be lawful if placed in a therapeutic setting in line with international medical standards as per Herczegfalvy v Austria, Dhoest v Belgium, Aerts v Belgium. These cases involved examples of force feeding, sedation by strong dosages, restraints around wrists and ankles by handcuffs, insanitary toilet and washing facilities, atmospheres of violence, overcrowding, restraining to beds, five weeks in seclusion (A v UK, a friendly settlement was reached in this case). The test for such a violation of article 3 to be reached was set out in Ireland v UK, where for such treatment to be classified as inhuman, it must reach such a level of gravity involving considerable mental or physical suffering and degradation where the person has undergone humiliation or debasement involving a minimal level of severity. Remarkably, the MHA 2001 only makes reference to restrictions on mechanical forms of bodily restraints such as restraining to beds and chairs. No reference of limitation is put on chemical restraints or other forms of physical restraints. Such abuse and maltreatment of patients should give rise to article 3 violations however to date the only such violation findings that have been made in this area have been with regard to the detention of patients in criminal settings (Keenan v UK, Price v UK).
Arbitrary detention under article 5(1)(e) of ECHR in respect of conditions of confinement, must show that conditions are anti-therapeutic and that the facilities lacked minimal standards of care and treatment as per Aerts v Belgium. However thus far, this area of law has not been fully tested and there are no safeguards in place to ensure that minimal standards and criteria are in place for treatment, care and protection of patients from abuse. Even in terms of a mental health service user seeking to assert their basic civil rights to a fair and public hearing while in detention or undergoing medical treatment, as guaranteed under Article 6(1) of ECHR, this was only first affirmed in the case of Golder v UK. Such hearings must be done within a reasonable timeframe by an independent and impartial court or tribunal established by law.
Other affected human rights of mental health service users include the right to privacy under article 8 of ECHR which includes the right to privacy of ones correspondence as in Herczegfalvy. Article 12 of ECHR guarantees the right to marry and found a family as per Hamer v UK. The fundamental right to life under article 2, was confirmed in Edwards v UK, where the patient was murdered by his cellmate who was known to be dangerous and a diagnosed schizophrenic.
Chapter 7: The Right to Mental Healthcare & the UN Convention on the Rights of People with Disabilities.
The UN Committee on Economic, Social and Cultural rights published their General Comment 14: The Right to the Highest Attainable Standard of Health and stated that the state must respect, protect and fulfil the right to health. The right to mental health has grown from the right to the best available medical care as set out in the MI principles. The conceptualization of mental health as a human right and not simply a moral claim, suggests that states possess binding obligations to respect, defend and promote that entitlement.
States throughout history and to the present day have treated mental health service users cruelly and abused their human rights to proper care, treatment and support of their fundamental human rights principles of fairness, respect, equality, dignity and autonomy. Cases in the ECtHR have increased the understanding of the relevance of human rights to mental health services users. NGOs have supported and assisted some individuals in eliminating abuses and creating proactive mechanisms to enforce their rights.
The right to individual mental health, individual autonomy and liberty includes public mental health from a population based perspective. This goes further than care or rehabilitation, there are positive obligations on the state to apply preventative measures to improve the publics mental health by encouraging activities, community involvement and less stressful living and working environments, social and welfare services, education and health information and opportunities, promotion of greater understanding and public awareness. Importantly, in Ireland section 5 of the Equal Status Acts 2000-2004 provides that reasonable accommodation must be made in the provision of goods and services and to do otherwise would amount to a form of discrimination.
Article 22 of United Nations Declaration on Human Rights states that social and economic rights are indispensible for a person?s dignity and the free development of his personality yet the Irish incorporation of the ECHR through the European Convention on Human Rights Act, 2003 only included the incorporation of the civil and political human rights contained therein. Albeit, protected by the Council of Europes Social Charter, such protection is not adequate in a domestic setting. Such an implementation gap creates a hollow vacuum in the legal recognition of the mental health service users right to live and work in society and to engage in all aspects of life such as the right to work, the right to privacy, the right to education and the right to participate in the cultural life of the community.
The UN Convention on the Rights of People with Disabilities (CRPD) entered into force on 3 May 2008 and is based on non-discrimination, equal opportunity and human rights, and enshrines in international law a rights based approach to disability. No definition of disability?is provided in the CRPD, which recognises that the concept of disability is an evolving one and it is now clearly accepted that disability includes mental disability. Article 2 of CRPD provides that?reasonable accommodation?be made by states to ensure that disabled persons can enjoy or exercise on an equal basis with others all human rights and fundamental freedoms. The ECtHR has also recently upheld this duty to provide reasonable accommodation in the case of Glor v Switzerland, where there was a duty on the state to consider alternative forms of service in the armed forces for disabled persons than full physical service. The CRPD marks a significant move from a rehabilitation approach to a rights based approach. In 2010 the EU acceded to the CRPD and so it is now part of EU law, however as highlighted in chapter two, that despite Ireland?s accession to the treaty, it still refuses to ratify same, even against the backdrop of huge protest from all parties affected directly and indirectly by its non-implementation.
Section 5: Informed Consent and Capacity to Mental Medical Treatment
Chapter 8: Informed Consent to Medical Treatment- Doctor Paternalism v Patient Autonomy
Consent to medical treatment concerns the right to autonomy and to self-determination. The rise in the awareness of these human rights has resulted in a significant shift in the balance between doctor/patient relationships in recent years. The capacity of the patient is the cornerstone of any such consent to medical treatment. Where a patient is deemed to lack capacity, the best interests test is applied as per the MHA 2001. Obviously and as set out in previous case law such as Re a Ward of Court, a patients human rights do not diminish due to their lack of capacity.
The right to refuse medical treatment is at issue in the case of mental health service users. Dworkin defined paternalism as interference with a persons liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced. The Oxford English Dictionary provides a more concise definition of paternalism as, the policy or practice of restricting the freedoms and responsibilities of subordinates or dependents in what is considered or claimed to be in their best interests.?The consent to medical treatment and to self-determine what happens to ones own body are fundamental aspects of the individuals right to dignity and to personal integrity.
The debate continues on whether the patients consent has to be sought and obtained for each medical procedure or if it is a general classification for a certain length of time. The general consensus however is that consent must be specific to each patient and assessed using whatever the best manner of effective communication is available to assess same. The test now appears to be whether the person can understand and decide on important health care issues as opposed to the old view of whether an individual can manage daily tasks e.g. a person suffering from depression may not be able to carry out daily tasks, however they may still have full cognitive capacity.
A functional approach to capacity to consent has been adopted in the United States, which involves understanding the information disclosed, appreciating the facts about the disorder and treatments, processing the treatment information in a logical way, and being able to form a choice. S56 (a) of Mental Health Act 2001 marks a beginning to follow this methodology. However, outside of this act, there is no stated legal test for determination of a persons capacity or competence to consent. Issues regarding a patients consent generally only come to light when a patient refuses a treatment contrary to a doctors advice. The inability to assess correctly the reasoning behind this refusal and to respect the patients autonomy could and has often led to an overriding of such a refusal based on the fact that the patient is mentally unwell and is therefore most likely to lack the capacity to consent. To get around the issue, doctors have often used the defence of necessity to proceed with this medical treatment. In the UK, the important case of Re C (adult: refusal of treatment), a chronic paranoid schizophrenic patient with gangrene, refused the medical advice to amputate his foot. Thorpe, J held that a patient is competent to give consent if he can understand and retain relevant information, believe it, and weigh it in the balance to arrive at a choice. 
The patients consent must be informed, competent and voluntary. In Canterbury v Spence, it was stated that in order to ensure an informed consent the doctor must disclose all risks that might materially affect the patients decision. However, the greater the risk to the patient, the greater the duty on the doctor to give all of the relevant information. The landmark case of Sidaway v Board of Governors of Bethlem Royal Hospital, held that the doctor must disclose whether the treatment is necessary or by choice. We have now begun to see a marked shift from the doctor paternalism in the Bolam case where doctors could reserve their therapeutic privilege not to disclose.
However, the right to autonomy or to self-determine is not absolute and must be balanced against the interests of society. The court must be satisfied that the treatment is necessary as per Herczegfalvy v Finland. Article 8 of ECHR concerns the right to private life and this includes the physical integrity of the person, as per X & Y v Netherlands and X v Austria. Under the Irish Constitution, the right to bodily integrity is an unenumerated right under article 40.3.1, Ryan v AG. In Re a Ward of Court, O?Flaherty, J held that there is an absolute right in a competent person to refuse medical treatment. Further to this, the right to privacy under article 40.3.1 of the Constitution includes the right to refuse medical treatment, even where this leads to a persons death.
The right to refuse medical treatment is enshrined in Article 3 of ECHR where there is a prohibition on torture and other degrading and inhuman forms of treatment. In the case Ireland v UK, interrogation techniques which included sleep and food deprivation and hooding of detainees were found not to amount to torture, however in the case of Aksoy v Turkey, the electrocution of a detainee amounted to torture. In Herczegfalvy v Finland, the force feeding of a patient with psychiatric problems on hunger strike was not classified as inhuman or degrading. The test for capacity is crucial. This is not such an issue where the patient has no mental illness as in Re T (an adult: refusal of treatment) and Airedate NHS Trust v Bland. The test appears to be whether a therapeutic necessity exists. In R (Munjaz) v Mersey Care NHS Trust, a detained psychiatric patient was subject to excessive and prolonged periods of seclusion however, this was not held to be in breach of his article 3 rights.
Importantly, article 3 of the European Charter states that consent to medical treatment must be given, as upheld in case Netherlands v European Parliament and Council. The use of the term unwilling?in ss 59 and 60 of the MHA 2001 should be replaced by a clear expression of non-consent so as to ensure that the service users expression of non-consent can be correctly recorded and adhered to where possible. Article 4 of Charter also prohibits torture. Under the common law, effective consent contains, 1) decisional capacity: a person must have the capacity to consent, 2) voluntarism: the consent must be given voluntarily, 3) Adequate information: it must be informed consent. This is a subjective and paternalistic approach under the common law position. The better approach would be by way of an objective functional test as per Donnelly and as discussed further in the next chapter.
Chapter 9: Capacity- Involuntary Patients v Voluntary Patients/ Incapable Compliants
Under part 4 of the Mental Health Act 2001 (MHA 2001), once the consent to treatment of an involuntary patient is obtained, they can be treated without consent for conditions related to their detention. Under s56 of MHA 2001, the sole responsibility lies with the consultant psychiatrist to determine the patients capacity to consent. This is without review or challenge. However, under s57 (1) of the 2001 Act, consent is not required if the patient is incapable of consenting and the treatment is necessary to safeguard the life of the patient to restore his health to alleviate his condition or to relieve his suffering. The Mental Health Commission has published guidelines regarding what a valid consent should incorporate and this signifies a move more towards the functional approach. This functional approach is the test for capacity set out in the proposed Mental Capacity Bill 2008.
In the recent case of Fitzpatrick v K, Laffoy J applied six principles to determine whether a woman who refused a blood transfusion on the grounds of her religious beliefs lacked capacity. The six principles relied greatly on whether the patient understood the nature, purpose and effect of the treatment and showed a remarkable similarity to the legal reasoning of the English case of Re C (adult: refusal of medical treatment), where the patient a paranoid schizophrenic, who refused an operation to amputate his leg, was held to have capacity.
Under S58(6) MHA 2001, psychosurgery is defined as any surgical operation that destroys brain tissue or the functioning of brain tissue and which is performed for the purposes of ameliorating a mental disorder. In order for such a procedure to take place, the patient must consent and it must also be authorised by a Mental Health Tribunal. Similarly, under s59(2) of MHA 2001, in order for a patient to undergo electro-convulsive therapy (ECT); the patient must consent however, in cases where the patient is unable or unwilling to consent the procedure can still proceed. One positive step with regard to this treatment under the MHA 2001 is that consent to such treatment cannot be given by a relative of the patient as was previously the case.
However, in the United Kingdom, ECT cannot be performed on an unwilling patient but can on incapable patients where a psychiatrist so authorises. However under the English Mental Health Act, 1983, the second opinion of a medical practitioner is one appointed by the Mental Health Commission and they must consult with two other persons professionally involved with the patient one of whom must be a nurse. Advance decisions and directives of patient are also taken into account. By stark contrast, all that is required in Ireland for the second opinion of a medical professional is that of a responsible psychiatrist.
S57 of MHA 2001, states that if the administration of medicine is to be continued after three months, it must be with the patients consent or approved by a responsible psychiatrist?and authorised by a second psychiatrist under s60. A capable patient can initially refuse however if they consent initially to the first three months, it may then be impossible for them to refuse additional courses of treatment under the provisions of the act. Bodily restraint and seclusion are permitted under s69(1) of MHA 2001, if deemed necessary for the purposes of treatment or to prevent a patient from injuring himself. The Mental Health Commissions rules governing the use of seclusion and mechanical means of bodily restraint are in accordance with the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. However, obviously difficulties may arise where a voluntary patient is so restrained.
Consent is presumed for voluntary patients unless otherwise shown and is dealt with under the Non Fatal Offences against the Person Act 1997. Although untested, it is the writers belief that given the paternalistic approach of the legislation and courts to the treatment of psychiatric patients and particularly with regard to the level of therapeutic privilege that can be adopted that an informal lesser duty of care may exist to the voluntary psychiatric patient as indicated in the benign approach adapted in Murphy v Greene. Further difficulties may arise with medical treatment or legal challenges where without the patients consent, their medical records cannot be released as per LK v Naas General Hospital and EJW v Watters & Others.
Under the Mental Health Act 2001, once a person has been detained involuntarily, that persons spouse or relatives has no further say in the patients treatment even where that patient lacks capacity. S4(2) of the MHA 2001 provides that a patient who is being detained must be notified and consulted with regarding proposed treatments however, where such a patient lacks capacity there is no legal requirement to notify and consult with such a patients family or carer. The position in England and Wales contains more legal supports and in such an instance, the family and/ or carer of such an incapacitated patient are considered and consulted with regarding the patients needs and treatment. Such relatives or carers can make representations and applications on behalf of the patient. The MHA 2001, does not provide that any information be made available to carers or family members of patients under the act and as such where an incapacitated patient obviously cannot consent to disclosure of their information, a lacuna in the law exists unlike the position in England and Wales where in such a circumstance the treating medical practitioner can consider if the disclosure of such information is in the patients best interests.
Under article 12, the CRPD requires that states recognise that persons with disability enjoy capacity on an equal basis with others and requires states to take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. This is a new approach based on supported decision making.
In Ireland, the area of legal capacity is still governed by the Lunacy Regulation (Ireland) Act, 1871. Once a person loses capacity under this act for example through wardship procedures, that individual becomes a vulnerable party to potential abuses of their human rights such as the right to privacy, autonomy, bodily integrity and liberty. The basis of all recent capacity legislation throughout the world is through the functional test for capacity, where an assessment of capacity is made specific to particular tasks or functions. So while as person may not hold capacity to execute a legal document they may have capacity to marry as per Re Parks Estate, Park v Park. Under the Mental Health Act 2001, arguably the functional test can be utilised even where a person has been involuntarily detained. This functional test of capacity was recently endorsed in the case of Masterman-Lister v Brutton & Co?and also at European level in Winterwerp v Netherlands.
Under the Lunacy Regulation (Ireland) Act, 1871, the functional test cannot be utilised. Donnelly argues that this presents as contrary to ones constitutional rights particularly in the instance where a ward of court wishes to marry. Also, quite worryingly, a ward of court does not hold the legal right to consent or not to medical treatment. The Law Reform Commission and Donnelly posit that rigorous consideration must to given to the assessment procedure for capacity and has highlighted significant deficits in the current assessment procedures used in England and Wales under their Mental Capacity Act 2005. Judicial findings have relied heavily on medical evidence in what they considered to the best interests?of the patient as in Re MB (An Adult: Medical Treatment). This constitutes a more sophisticated approach now where the past and present preferences and beliefs of the patient can be considered, as if they had capacity what their decision would most likely be under the Mental Capacity Act 2005 (MCA 2005) of England and Wales.
Under the MCA 2005, the decision regarding the persons capacity is made by the person mostly concerned with the individual in relation to the decision to be made e.g. medical practitioner in the case of medical treatment. Code of Practise guidelines can be used in conjunction with the MCA 2005 act. Potential difficulties arise in England and Wales however, where the law effectively has handed over capacity assessment from the judiciary to non-lawyers. Other difficulties include the therapeutic influences of treating doctors and communications difficulties. Donnelly advocates for a special Court of Protection for clarity where a persons capacity is at issue. Written decisions would also be available from which guidelines could be assessed and drafted.
Presently, once a finding of incapacity has been made against a patient under Irish law, then a presumption of continuance remains, which could clearly not be in line with the methodology of the functional test. In the framing of any mental capacity legislation for Ireland, the recommendations of Donnelly should be heeded i.e. provision of independent representation for the person whose legal capacity is at risk, careful review of medical evidence and participatory involvement of the person in the assessment and procedure. Also, at a basic level, the detained psychiatric service user whether involuntary or voluntary must be assumed to have legal capacity unless it can be proven otherwise, thus shifting the burden of proof to those who seek to override same.
Section 6: Children
Chapter 10: The Human Rights of the Child
Like an adult, a child has the same human rights however, the child as a more vulnerable member of society has more distinct and specific rights to be protected and arguably a greater duty of care is owed to them. So it should follow, that the legal provisions available to protect the human rights of the child should in fact be greater as opposed to lesser (as is the case in Ireland). In Ireland, suicide is the leading cause of death among young persons and adolescents. In the important case of DG v Ireland, a 16 year old boy with behaviour problems was detained in St. Patricks Institution, a penal institution, where no therapeutic care unit was available for him. The ECtHR held that there had been a violation of the childs right to liberty under article 5 of ECHR.
Parental and child access are also distinct human rights under article 8 of ECHR, whereby a child who is validly detained has rights of access to his parents as per Hendriks v The Netherlands and W v UK. However, the right of the child to initiate legal proceedings under article 6 of ECHR was limited in Golder v UK, where it was held that this right could be restricted as in Ashingdale v UK.
There is a natural imbalance in power between an adult and a child and this was confirmed in the case of Nielson v Denmark, where an eleven year old had been held in an adult psychiatric ward. The European Convention on Human Rights is not as child focussed as the UN Convention on the Rights of the Child 1989 (CRC). The four core principles of the CRC are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child.
The European Charter also does not create any new family or child rights. Further to this, the Charter in itself creates confusion as, with the adoption of the Charter of Fundamental Rights of the EU, we see the emergence of two separate systems of human rights protection in Ireland. The Irish are bound by EU law to follow the jurisprudence of the ECJ, but also bound under international law to follow the jurisprudence of the ECHR. Naturally, the difficulty is and will be to which system should the domestic Irish courts defer? 
Chapter 11: Admission and Detention
Under the Mental Health Act 2001, a child is defined as a person under the age of eighteen years and who has not yet married. The procedures are different for the admission and detention of a child. Their detention is mostly voluntary with the consent of their parent or guardian or at the initiation of the HSE. If the application is made by the parents, the assistance of the HSE is still required to bring the case before the District Court for the initial detention of twenty one days. The child must be examined by a consultant psychiatrist prior to the application, however if the parents do not consent to such examinations or if they cannot be located, the child can be detained until the court can make the appropriate orders.
There are no procedures for review before a Mental Health Tribunal. The MHA 2001 does not provide within it a specific and detailed section solely for children. By contrast, the Mental Health Act 1983, as amended of England and Wales provides for a specific section of the detention and medical treatment of children and adolescents. Further to this, their Mental Health Act 2005 confirms that the age of majority for a child is sixteen years and that those children over the age of sixteen with capacity can legally consent or not to admission, detention and medical treatment.
Oftentimes in Ireland, due to the lack of facilities children will be detained in adult facilities. In 2010, one hundred and fifty five children, just over one third of this group were admitted to adult psychiatric wards. Once admitted voluntarily, the position is similar to that of an adult, and a child can then become detained involuntarily. It is hard to see how this current regime could be in line with the provisions of the UN Convention on the Rights of the Child where particular considerations need to be given to the involuntary detention of a child due to their vulnerable nature. The MHA 2001 does not recognise the views and wishes of children while in detention and/ or receiving medical treatment and Amnesty International have called for a separate specialised legal advocate to be made available for all children so unfortunate as to find themselves within this system. Further to this, all such children voluntary, involuntary and incapably compliant should be entitled to an automatic and periodic judicial review of their detention and their medical treatment; such is the gravity of this concealment of their human rights.
Chapter 12: Medical Treatment
Voluntary treatment can be consented to by parents and guardians, if the child is less than eighteen years and not married. This is directly in conflict with s 23 of the Non Fatal Offences Against the Person Act 1997, where a child is deemed to have reached the age of majority at sixteen years and can thus provide a valid consent from that age. Medical treatment can be given involuntarily to children under s25 of MHA 2001, however, with regard to consent to treatment, ss 56 & 57 do not apply to children.
A lacuna exists where consent is required for the continuation of the administration of treatment under ss 60 & 61 of MHA 2001, where a child is unable or unwilling to consent, their wishes and any consent issues of their parents can be overridden by the consultant psychiatrist. The legal position of the parent/ guardian is further restricted by ss25 (12) and 25(13) with psycho-surgery and ECT, where their consent is not required but merely an order of the District Court. Remarkably, s 25 of the MHA 2001, therefore appears to conflict with the Irish Constitutions status and rights of the family and parents in article 41 & 42.
General Comment No. 12 of the UN Committee on the Rights of the Child states that particular attention needs to be paid to the provision and delivery of child friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens and separate waiting rooms. In line with same, it is the writers view that a specialised child focussed Mental Health Tribunal should be established immediately for all children engaging with mental health services so as to ensure all of their human rights can be held and progressed in line with adult service users now and into the future.
Conclusions & Recommendations- A New Way Forward?
There are it appears four dominant, universal, core factors to be considered in the evaluation on whether human rights standards have been violated in the area of mental disability law for civil mental health service users (Perlin:2007); 1) Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates, 2) Lack of independent counsel and lack of consistent judicial review mechanisms being made available to persons facing confinement and those institutionalized, 3) Failure to provide humane care to institutionalized persons and 4) Lack of coherent and integrated community programs as an alternative to institutional care, now being evidenced in international human rights law. The writer will assess Irelands current status in light of each of the above in turn.
1) Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates.
Considering the background to the complex intersectionality of human rights with mental health disability law, Ireland has come a long way from the cruel and inhuman treatment levied in the past against its citizens afflicted with mental health disabilities. However, in terms of the advances now seen internationally and in particular at European and United Kingdom level, Ireland has descended into a maze of apathy and ambiguity, since its enactment of the Mental Health Act 2001 in 2006. Even with regard to its drafting and actual legislation that it has implemented domestically such as the recent Irish Disability Act 2005, the stakeholders and those affected considered same with great disappointment given its astonishing lack of right based approaches within.
By Irelands refusal to expand on or even to implement its accession to the UN Convention on the Rights of People with Disabilities, and its A Vision for Change 2006, the state is now well out of date with international advances of other first world countries. Ireland is clearly in breach of article 4.1(a) of the UN Convention on the Rights of Persons with Disabilities, which provides that state parties must adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention. In terms of its capacity legislation, Ireland still relies on the obsolete provisions of the Lunacy Regulation (Ireland) Act 1871, while the rest of the first world moves on with constructive debate regarding the suitability and objectivity of the capacity test to be imposed on the subject.
2) Lack of independent counsel and lack of consistent judicial review mechanism made available to persons facing commitment and those institutionalized.
Despite the establishment of the Mental Health Commission and the commencement of the Mental Health Tribunals in 2006, significant gaps in the law exist for those voluntarily detained, as there are no provisions under the Mental Health Act 2001 for the automatic review of their detention. Even more precarious is the position of the incapable compliant patient, who ironically commands greater protection from the law, but has been sidelined into a category classed as voluntary by the Irish judiciary, so as to avoid any questioning of the antiquated capacity issues at stake. Article 12.3 of CRPD provides that, States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
The difficulty faced by any Mental Health Tribunal is naturally to balance the patients right to liberty against the protection and treatment of the patient and also the protection of the public. Such a minimal risk posed to the public can hardly be laudable given that it is the mental health service user that in fact requires the protection from and support of the public and society at large.
The legal procedures for the detention and medical treatment of children both voluntary and involuntary are improper and in great need of reform. It is not acceptable to have to seek a court order for detention orders, renewal orders and medical treatment when a special tribunal system should exist to provide for same. Further to this, the practice of interning a child for whom consent cannot be obtained for detention e.g. where a parent or guardian cannot be located, until such a court order can be obtained to legalise same, is a gross abuse of the childs right to liberty and a fair hearing. There is a great need for specialized centres for children, where therapeutic treatment can be given as an essential component to comply with international human rights standards and should be prioritized without delay.
Equity should allow for service users to have the right to have a family member or advocate present with them at their mental health tribunals (as is the case in England and Wales), should they so wish, to assist them in asserting their true wishes and legal rights as human beings, instead of being condemned to isolation not just in institutions but in their endeavors to vindicate their human rights.
3) Failure to provide humane care to institutionalized persons
The MI principles provide for meaningful therapeutic treatment to be given to mental health service users in accordance with human rights such as the right to be free from physical restraints and involuntary seclusion. In everyday life, there are regular cases where patients are restrained and secluded in isolation contrary to their wishes, when alternative forms of treatment could be utilized of a more human and effective nature.
There are clear violations of patients human rights, where outdated and inequitable forms of capacity testing are used or even worse an overriding of their capacity for necessity reasons or where a presumption of continued incapacity is relied on by treating doctors.
Even at judicial level, the European courts have still proved reluctant to find in favour of a patient who asserts that they have been subject to inhuman or degrading treatment while in detention. Would this judicial deference to the medical profession be as unequivocal, if the patients concerned were not mentally ill, but individuals suffering from physical injuries in an ordinary hospital?
4) Lack of coherent and integrated community programs as an alternative to institutional care, now being evidenced in international human rights law
The MI Principles and UN Convention on the Rights of People with Disabilities, together with the ICESCR and General Comment 5 recommend that governments adopt legislation and policies that enable persons with disabilities to live an integrated self-determined and independent life.
The reality is that as it currently stands the MHA 2001, is irrelevant to the majority of people with mental illness, dementia or mental disability whose conditions do not come within the definitions of the Act.
What matters most to the mental health service user is the ability to live in society either independently or through supported community living. Their basic human needs are the same as those persons who proclaim to be normal, in that they have a social need for family and interaction with others together with a desire to work in employment for an equal pay.People with mental health disabilities learn early that there is something which could negatively impact on them called stigmaDirect and indirect discrimination takes many forms against the mental health service user and most have succumbed to a silence, through which they can hide the shame of their illness and avert the gaze of society.
Although numerous documents and programs for change have been drafted by NGOs and the Irish government, on the ground little has changed. The psychiatric asylums still remain in operation under a defective and disjointed legal framework, which does little to vindicate the human rights of the mental health service user in Ireland. Through my research, I have gathered below some thoughts on recommendations, which I believe could radically alter this current framework.
Mental illness is in the words of James Joyce, the most elusive disease known to man and unknown to medicine.It may be for this very reason that successive governments have struggled to come to terms with how best to deal with and treat the mental health service user. On balance, I propose a variety of right based approaches which would take into account the human rights principles of fairness, respect, equality, dignity and autonomy through;
- User Involvement or Participation;
There are various forms of participation that can be pursued which would ensure that such laws and policies are not created solely by professionals removed from the reality of the life situation of the mentally disabled person in society. Such active and informed participation could led to effective monitoring and evaluation of the pros and cons of such policies, where at present there are none.
This has been in practice throughout the United Kingdom for some time now, however it is a new phenomenon in Ireland. User participation creates empowerment and must be more than a tokenistic approach. There have been difficulties highlighted by academics such as McDaid, of users reluctance to participate due to negative public perception and social stigma experiences by mental health service users, such as inequalities in the committee structures (McDaid: 2006), e.g. lack of influence, lack of respect, lack of resources (economic, cultural, physical and mental, educational) and facilities, stress of involvement which could aggravate mental disabilities.
An equality of arms is necessary for a participatory programme which would provide for a scenario where all parties to a proceeding have equal opportunity to present a side of the case and that neither should have substantial advantage over the other side. It is important that as current and future laws and policies involving mental health service users are drafted and framed that emphasis on human rights based approaches such as participation and accountability are focussed on. All enacted procedures and provisions should mark a distinct move towards a patient centred approach away from the ineffective paternalistic doctor approach.
Where domestic protections are inadequate an individual can bring their claim to the ECtHR or rely on the provisions of the ECHR in Irish domestic courts through the incorporation of the ECHR, under the European Convention on Human Rights Act, 2003. However, the number of cases where Ireland has been involved in the ECtHR is quite small as many are settled beforehand through friendly settlements e.g. Ireland v UK. Of the approximately 118,000 cases taken to the ECtHR for human rights violations, only 108 of these concerned mental health issues. There are large difficulties for an ordinary mental health service user accessing the ECtHR or other legal mechanisms, given that many service users are also disadvantaged financially and socially. Such disempowerment creates a greater vulnerability.
An independent complaints mechanism is required for mental health service users. There is it appears little information and/ or confidence in the current system as regards accountability and transparency. Many service users are afraid to speak out against their care providers in case they could be punished directly or indirectly for same. Such independent?accountability mechanisms provide a forum for explanation and justification,such as courts, human rights institutions, public hearings and meetings through which real remedies could be available such as restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Studies have shown that such fair and transparent monitoring would be best served through forms of responsive regulation that would encompass a hybrid form of hard and soft law. From these approaches, accountability can be achieved.
Human rights violations can occur through actions or omissions. Human Rights violations are not accidents; they are not random in distribution or effect. Rights violations are, rather symptoms of deeper pathologies of power and are linked intimately to the social conditions that so often determine who will suffer abuse and who will be shielded from harm(Farmer 2005:7).
Society needs to be educated towards a better understanding of what mental illness involves and that its services users are not people to be feared or locked up away from the world. Persons with mental health disabilities deserve to be treated in the community as human beings with compassion and proper therapeutic care. Changes to the societal attitudes can only happen over time through education and public awareness campaigns.
4.Positive Obligations of States;
Art 16 of CRPD holds, that states must take all appropriate legislative and administrative measures to protect persons with mental health problems from all forms of exploitation, violence and abuse. There is however currently no legislative measures in Ireland to protect against the abuse, neglect or ill-treatment of mental health service users.
The European Convention on Human Rights, not only protects the human rights therein, but it also places a positive obligation?on states to seek to prevent such rights abuses occurring while also seeking to frame their human rights policies within a human rights based approach setting. The way forward in the creation and implementation of new standards and laws relating to mental health service users can only be done following human rights based approaches. With the mental health service users right to the highest attainable standard of health comes the responsibility of states to establish mechanisms that facilitate and enable participation in health-related planning, policy-making, implementation and accountability. This can be achieved through properly drafted and implemented legislation.
NGOs such as the Irish Human Rights Commission and Amnesty International have called for new legislation to be clear and detailed in their implementation plans, providing for accountable effective leadership, closure of old psychiatric asylums and integration of service users back into society where they belong albeit in supported community living environments. This is further confirmed in the CRPD.
5.Change in Medical Model to Patient Focussed Social Model;
There are four arms of medical and psychiatric ethics, which are 1) acting justly, 2) respect for patient autonomy and dignity, 3) not harming and 4) acting beneficially (Beauchamp 2009). Even by their own standards, the clinicians have failed to vindicate the mental health service users human rights.
The paternalistic clinicians approach to mental health is not compatible with a human rights based approach. The MHA 2001 is paternalistic in intent and practices. New mental health legislation is required, whereby consideration must be given to whether or not the use of force is really necessary or even useful. Detention should always be viewed as a last resort.
A more just and social model of treatment which would involve the whole of the medical profession and all holistic medical disciplines from doctors to nurses to occupational therapists instead of the traditional psychiatric approach. Within this structure and pursuant to the provisions of the UN Convention on the Rights of People with Disabilities, direct emphasis needs to be placed on the recovery and rehabilitation of the service users into society.
The locking up of mental health service users is a direct result of societys fear, prejudice and discrimination towards those too infirm to fight back. Those voluntary incompliant service users deserve more than indefinite periods of detention without review, where in a just society it could be equated to an internment without trial.
6.Community Centres and Shared Decision Making
At a primary care level, preventative public measures should be in place within the community to assist those service users requiring emergency or immediate treatment. Such treatments should be based on shared decision making, providing choice within interventions and provision of information with real options for the service user.
Further activities and group meetings should be available for group discussion and participation, where the service users family and close friends can assist with and encourage the service users rehabilitation and recovery. Similar health models can be found within the Italian mental health system.
Given the strides in medical and legal advances that have been made over the recent decades internationally and within Ireland in the area of mental health disability and human rights, one cannot be completely pessimistic regarding the future. Increasing media coverage and NGO involvement in this area continues to highlight the problems posed, to which the Irish government and society will not be able to shield from forever. Although there is much work left to do to vindicate the human rights of the mental health service user, there is a new hope which sends a shining ray far down the future broadening way.
Statutes and Statutory Instruments
Mental Treatment Act, 1945, SI 19/1945
Mental Treatment Act, 1953, SI 35/1953
Mental Treatment (Detention in Approved Institutions) Act, 1961, SI 4/1961
Mental Treatment Act, 1961, SI 7/1961
Health (Mental Services) Act, 1981 SI 17/1981
Mental Health Act, 2001 SI 25/2001
Mental Health Act, 2008 SI 19/2008
The Disability Act 1995 SI 14 of 2005.
The Equal Status Acts 2000-2004
The Non Fatal Offences against the Person Act 1997 SI 26 of 1997.
Bunreacht na hEirinn 1937
Committee on Economic, Social and Cultural Rights, General Comment No. 6, The economic, social and cultural rights of older persons, (E/1996/22, 8 December 1995).
General Comment No. 12 of the UN Committee on the Rights of the Child-The Right of the Child to be Heard, UN Doc CRC/C/GC/12 20 July 2009
International Covenant on Civil and Political Rights adopted by General Assembly Resolution 2200A XXI of 16 December 1966.
International Covenant on Social, Economic and Cultural Rights, by General Assembly 2200A XXI of 16 December 1966.
The Universal Declaration of Human Rights, 10 December 1948.
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly A/RES/39/46 on 10 December 1984
The United Nations Convention on the Rights of the Child, June 2010
The United Nations Convention on the Rights of People with Disabilities, 2007
United Nations, The Protection of persons with mental illness and the improvement of mental health care, A/RES/46/119, December 1991
European Convention on Human Rights, 1950
European Social Charter 1961 & 1996
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 Ibid, article 6.
 Ibid, article 9.
 International Convention on Economic, Social and Cultural Rights, adopted by General Assembly 2200A XXI of 16 December 1966, article 10.
 Ibid, article 11.
 Ibid, article 15.
 Ibid, article 12.
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 Ibid, article 3(a)
 Ibid, article 3(b).
 Ibid, article 15.
 Ibid, article 16.
 Moriarty B & Massa E (edtrs) Human Rights Law, (The Law Society of Ireland, 3rd edn: March 2010), p. 124.
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 Ibid, articles 6 & 7.
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 Ireland v UK 5310/71
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 Price -v- United Kingdom; ECHR 10-Jul-2001
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 Herczegfalvy v. Austria. Application No. 10533/83; (1993) 15 EHRR 437;  ECHR 83;  ECHR 58; (1992) 18 BMLR 48
 Hamer -v- The United Kingdom 7114/75;  ECHR 2.
 Edwards v UK 13071/87
 O Gostin L & Gable L, ?The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health? in Maryland Law Review (2004), p.103.
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 Glor v Switzerland. European Court of Human Rights (ECtHR), April 2009, Application No. 13444/04
 Re a Ward of Court  2 ILRM 401.
 Deirdre Madden, Medicine, Ethics and the Law ( Butterworths (Ireland) Ltd, 2002), p. 395.
 Oxford English Dictionery Online, March 2008 Draft Revision.
 Deirdre Madden, Medicine, Ethics and the Law ( Butterworths (Ireland) Ltd, 2002), p. 395.
 Re C (adult: refusal of treatment)  All ER 189
 Deirdre Madden, Medicine, Ethics and the Law ( Butterworths (Ireland) Ltd, 2002), p. 402.
 Canterbury v Spence (1972) 464 F2d 772,
 Sidaway v Board of Governors of Bethlem Royal Hospital  AC 871
 Bolam v Friern Hospital Management Committee  1 WLR 582
 Herczegfalvy v Finland (1992) Series A, No. 244, para 82.
 X & Y v. The Netherlands, 26 Mar. 1985, 8 E.H.R.R. 235
 X. v. Austria 2676/65 ECHR 27
 Ryan v AG  IR 294
 Re a Ward of Court  21R 79
 Ireland v UK (1982) EHRR 25,
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 Herczegfalvy v Finland (1993) 15 EHRR 437
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 R (Munjaz) v Mersey Care NHS Trust  3 WLR 793
 Netherlands v European Parliament and Council  377/98 ECR I-7079
 Casey P, Brady P, Craven C & Dillon A, Psychiatry and the Law, (2nd edn Blackhall Publishing, Dublin: 2010), p. 471.
 Fitzpatrick v K  IEHC 104
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 Mental Health Commission, Rules governing the use of seclusion and mechanical means of bodily restraint ref no: R-S69(2)/02/2006
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 LK v Naas General Hospital  2 I.R.465
 EJW v Watters & Ors (Unreported, HC, Peart J, 25 November 2008).
 Donnelly M & Murray C, ?Unpaid carers: an invisible presence in Irish health and care law? in Medico-Legal Journal of Ireland 18(1), 6-12 2012),p. 3.
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 Moriarty B & Massa E (edtrs) Human Rights Law, (The Law Society of Ireland, 3rd edn: March 2010, p. 234.
 Mental Health Act, 2001: A Review Summary Paper, Amnesty International, p. 30.
 General Comment No. 12 of the UN Committee on the Rights of the Child-The Right of the Child to be Heard, UN Doc CRC/C/GC/12 20 July 2009, para.34.
 Irish Disability Act 2005 SI 14 of 2005.
 Perlin M, International Human Rights Law and Comparative Mental Disability Law: The Universal Factors in Syracuse Journal of International Law & Commerce Vol.34:333 (2007), p. 351.
 Donnelly M, Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach? in Legal Studies vol 29, No.3 (2009),p. 62.
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 Ireland v UK 5310/71
 Dr Potts H, Accountability and the Right to the Highest Attainable Standard of Health, (Human Rights Centre, University of Essex : 2007), p. 15.
 Dr Potts H Participation and the Right to the Highest Attainable Standard of Health, (Human Rights Centre, University of Essex : 2008), p.2.