The Fundamental Rights Agency (FRA) today published a significant Report entitled Involuntary placement and involuntary treatment of persons with mental health problems. The Report is the latest in a series of work that has been undertaken by FRA, which is the advisory body to the European Union on human rights issues. The report is based on fieldwork in 9 EU Member States and it summarises the experiences of persons with mental health problems who have been subjected to involuntary detention and involuntary treatment.
The Report is very useful in that it sets out the relevant international human rights law relating to the involuntary detention and treatment of persons with mental health problems. The Report notes that the field is evolving and that the UN Convention on the Rights of Persons with Disabilities is fuelling a paradigm shift in thinking around how the state responds to persons with mental health problems. This Report is published at a time when Ireland is reviewing its mental health law in order to bring it closer into compliance with international human rights law. There is a real opportunity for us in Ireland to critically evaluate our mental health law, which is construed in a paternalistic manner and places too much power in the hands of psychiatrists to involuntarily detain and treat persons with mental health problems. The Irish courts have taken a paternalistic and weak approach to vindicating the rights of persons subject to the mental health legislation as was aptly illustrated in the recent judgement of P L v. Clinical Director of St Patrick’s Hospital [2012].
Amnesty International Ireland and the Centre for Disability Law & Policy at NUI Galway on 23 June will host a conference entitled “Mental Health Law Reform: New Perspectives & Challenges”. The conference will examine issues relevant to this review, including Ireland’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as it moves towards ratification. The conference will hear from leading national and international experts on mental health law and policy. The conference will also hear from an expert panel on mental health in Ireland, which will be composed of a service user, psychiatrist, family member and legal practitioner.
The important point is that Article 14 of the CRPD requires a fundamental shift in thinking about our mental health laws. Article 14 reiterates the general right to liberty, which cannot be forfeited unlawfully or arbitrarily. Article 14 states that ‘disability shall in no case justify a deprivation of liberty’. It was initially thought that Article 14 added little to international law since disability has never been a justification for loss of liberty. It was the conjunction of disability with the perception of ‘danger to self’ or to ‘others’ that justified deprivation of liberty. It was thought that Article 14 essentially signalled a tightening of the criteria upon which loss of liberty can occur. However, the implications of Article 14 are much more significant than the tightening of the criteria upon which loss of liberty can occur. The OHCHR in a Thematic Report from 2009 made a number of significant statements on action required by State Parties in order to comply with the Convention. Under the heading ‘right to liberty and security of the person’ the OHCHR, stated that Article 14 of the Convention means that involuntary detention and or treatment based on mental disability or a mental disorder is not permitted. The Report states that a
‘particular challenge in the context of promoting and protecting the right to liberty and security of persons with disabilities is the legislation and practice related to health care and more specifically to institutionalization without the free and informed consent of the person concerned (also often referred to as involuntary or compulsory institutionalization).’
The OHCHR Report went on state that Article 14 means that legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished.
‘This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness.’
The OHCHR explained that this statement ‘should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.’
This FRA Report analyses the shifting legal landscape and is a useful resource that is informed by its fieldwork in 9 EU Member States on the lived experiences of persons involuntarily detained and treated and other stakeholders. The Report points to the need for a renewed discussion of involuntary placement and treatment throughout the EU. The Amnesty International and CDLP conference on 23 June will provide a forum for this much needed discussion in Ireland.
