Ireland’s progress in implementing the International Covenant on Civil and Political Rights (ICCPR) is due to be examined by the Human Rights Committee next Monday. Many civil society organizations have provided information to the Human Rights Committee on the reality of civil and political rights protections in Ireland – including Amnesty, ICCL, IPRT, Survivors of Symphysiotomy, LGBT Noise, and others. However, relatively few of the submissions made focus on the violations of civil and political rights which affect people with disabilities and those with experience of the mental health system. One submission which does address these issues is that made by the Recovery Experts by Experience (REE) – a group of ‘experienced users/survivors of Mental Health Services, formerly known as the Expert by Experience Advisory Group (EEAG) to Amnesty International Ireland’s Mental Health Campaign.’ You can read the full text of the submission here.
The REE submission focuses on three key ICCPR Articles – Article 7 on the right to freedom from torture, cruel, inhuman or degrading treatment or punishment, Article 9 on the right to liberty and security of person, and Article 10 on the right of those deprived of liberty to be treated with humanity and respect for the inherent dignity of the person. This submission provides clear examples of how various provisions of Ireland’s Mental Health Act, in addition to certain practices within mental health settings, conflict with the rights contained in the ICCPR. One such example is section 59 – which allows electro-convulsive therapy to be administered to patients who are ‘unable or unwilling to provide consent’ on the approval of two consultant psychiatrists.
These users and survivors of mental health services argue that involuntary detention and forced psychiatric treatment violate the rights to liberty and, in many cases, the forced treatment itself can constitute inhuman or degrading treatment or punishment. This argument reflects the position of the UN Special Rapporteur on Torture, Juan Mendez, who stated in his 2013 report that:
“Forced interventions [on persons with psychosocial disabilities], often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment”
While Ireland’s Mental Health Act is currently under review, with a view to introducing amendments, it does not seem likely that the concept of involuntary detention and treatment will be radically overhauled. Amendments to the Mental Health Act also depend in part on the progress of the Assisted Decision-Making (Capacity) Bill – including the provisions on legally binding advance healthcare directives, to be introduced in the Capacity Bill at Committee stage.
Mental health issues are primarily addressed in the context of prisoners in Ireland’s State report to the Human Rights Committee – and the broader issues reflected in the REE submission are only briefly addressed in the section of the report outlining the consultation process undertaken by government with civil society stakeholders.
The List of Issues prepared by the Committee for dialogue with Irish government representatives next Monday does include questions on Ireland’s Mental Health Act – specifically, on the numbers of voluntary patients who have been subsequently detained under sections 23 and 24 of the 2001 Act, compliance with the Mental Health Commission’s Code of Practice on Restraint and Seclusion, and the use of ECT on both voluntary and involuntary patients. A specific question is also included on the progress in developing Ireland’s Assisted Decision-Making (Capacity) Bill.
However, I personally would like to see the members of the Human Rights Committee ask more searching questions on these topics when it begins its dialogue with Irish Government representatives next Monday. For example, in the context of the Assisted Decision-Making (Capacity) Bill, questions could be raised regarding the compliance of that Bill with the right to equal recognition of persons with disabilities, including users and survivors of mental health services, as full persons before the law – including the equal right to respect for the individual’s inherent legal capacity. This is particularly pertinent in light of the UN Committee on the Rights of Persons with Disabilities’ General Comment 1 on Article 12, which now unequivocally states that ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.’ Similarly, questions could be asked about the proposed amendments to the Mental Health Act, including through the capacity legislation – particularly with regard to the use of advance healthcare directives in situations of involuntary detention, as the General Scheme published by the Department of Health in February does not purport to allow directives to be legally binding where an individual is involuntarily detained.
In light of the increasing recognition of the indivisibility and interdependence of all human rights – it would be important for the Human Rights Committee, in developing its Concluding Observations on Ireland, to have regard to the evolving jurisprudence of other treaty bodies on the application of civil and political rights to particular groups. In proposing recommendations to address violations of civil and political rights experienced by users and survivors of mental health services in particular, the Human Rights Committee should be mindful of the recent work of the UN Special Rapporteur on Torture, and of the Committee on the Rights of Persons with Disabilities.