This is a joint post by Eilionóir Flynn and Charles O’ Mahony.

On Monday, while commotion ensued in Dáil Éireann and political controversy and speculation abounded, a small group of individuals were cut off from the nearby action in a seminar (co-hosted by the Centre for Disability Law and Policy and Amnesty International Ireland) about the implications of the Convention on the Rights of Persons with Disabilities (CRPD) for mental health law in Ireland.  Although it might seem to some that this is a strange time to be talking about mental health reform given the current economic crisis, one of the central themes of the event is one which has serious resonance for Ireland’s current predicament.

Gabór Gombos (pictured), a newly elected member of the Committee on the Rights of Persons with Disabilities (and a former mental health service user) presented the following as his key message: we should not compromise on the core norms of dignity and autonomy when faced with difficulties in implementation.  Rather, we should accept genuine steps in a positive direction, even where these start from a very low base.  This reasoning does not only have its basis on the notion of progressive realisation enshrined in international human rights law.  Rather, it presupposes that, as a nation, there is a consensus on the type of society we want to have and what rights and responsibilities this would entail.  It appears that such a consensus has never been sought from the Irish people and the current situation serves as a reminder for the need for a rational public discourse on the norms that we agree to live by and be governed by.

There can be a tendency to think that the current crisis means we should lower our expectations of the role of the State in safeguarding the fundamental rights of its citizens. Mr. Gombos’ point is that to do so is extremely dangerous in the long term.  While we can perhaps accept a slower pace of implementation, the end goals of ensuring that people can live independently with the support required to reach their highest level of functioning should not be compromised.  In terms of mental health law reform specifically, participants at the seminar put forward a number of suggestions made about the interim steps that need to be made towards the ideals set out in the Convention.

These included moving away from coercion-based interventions in the lives of people with mental health difficulties (including detention in institutions) towards community-based alternatives, basing decisions about treatment on the capacity of the individual (not purely based on a medical understanding of the individual’s ability to make decisions), and the introduction of some form of assisted, supported, or facilitated decision-making as a less restrictive alternative to the imposition of substitute decision-making or guardianship. These ideas are not new and indeed proposals for achieving some of these aims for people with mental health difficulties have been clearly set out in a number of policy documents, including A Vision for Change – Ireland’s national mental health policy framework. However, pragmatic difficulties with the reforms proposed at the seminar were also raised in this discussion, including the challenges presented by those whose wishes and preferences cannot be determined even where all alternative forms of communication have been explored and those who pose a risk to others and themselves but may be deemed to have capacity to refuse treatment.

Professor Phil Fennell from Cardiff School of Law gave a paper responding to Mr. Gombos.  Professor Fennell pointed out that mental health law in both Ireland and England and Wales, (while recently reformed to be more human rights compliant) falls well short of the requirements of the Convention.  He also pointed out that the European Convention on Human Rights is in part at odds with the ideology of the CRPD.  The European Court of Human Rights has interpreted Article 5 as requiring that detention on the basis of “unsound mind” can only happen when a person has a mental disorder.  The mental disorder needs to be established before the relevant national court or tribunal and needs to be supported with objective medical evidence.  The Court has held that the evidence should be of the kind and degree that requires compulsory confinement and that the detention can only be considered lawful in circumstances where the mental disorder persists. See the seminal case in this area (Winterwerp v The Netherlands).

This approach conflicts with the standards required by the Convention.  The Office of the High Commissioner for Human Rights last year stated:

“The Convention radically departs from this approach by forbidding deprivation of liberty based on the existence of any disability, including mental or intellectual, as discriminatory…  unlawful detention encompasses situations where the deprivation of liberty is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, or care and treatment. Since such measures are partly justified by the person’s disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability, and the right to liberty on an equal basis with others prescribed by article 14.”  See here.

This position outlined by the Office of the High Commissioner departs from the case law of the European Court on Human Rights on Article 5.  The ECtHR case law has been instrumental in challenging arbitrary and wrongful detention of persons across Europe on the basis of a mental disorder.  As such the new thinking reflected in the CRPD is very challenging (even for human rights lawyers) and requires us to radically reconsider our current thinking on human rights as it relates to mental health. There seems to be a centrist acknowledgement that a step-by-step approach is needed in moving to the ideal or human rights standard set out in the Convention.  The implications of the approach to mental health law set out in the Convention have not been teased out and it is not likely that the issues can be teased out until such time as State Parties move towards realising the norms in their domestic law or a template for how the law would look is developed. Reform of the nature required by the Convention may leave a vacuum and the criminalisation of persons with mental illness would be an undesirable result. The criminalisation of mentally ill persons following the deinstitutionalization is a cautionary tale in not providing the necessary services to support policy.

Amongst the most striking experimentalist features of the CRPD has been the extensive participation of civil society and Non Governmental Organisations. This is a hugely significant element of the Convention as it places persons with disabilities at the heart of the Convention.  It is interesting in this regard to note that a number of service user and survivor groups and disability groups made submissions to the UN following the opening of the Convention for signature calling for the abolition of the insanity defence.  The Office of the High Commissioner in its thematic review concluded that the Convention indeed requires the abolition of the insanity defence.  This is a very challenging conclusion and the implications are far reaching.  Beyond that it raises a question as to whether certain disability groups and service users and survivors organisations (who consult with the UN) are representative of offenders with mental health problems.

The paradigm shift needed to bring the domestic law of State Parties to the Convention into compliance requires a dramatic change in how we think about mental health and a complete departure from the way in which mental health laws are written.  Policy makers, lawyers and psychiatrists might quickly disregard the United Nations calls for the insanity defence, involuntary detention and involuntary treatment to be abolished as bizarre and illogical.  However, as Bartlett has suggested adopting “a hurt and somewhat defensive posture” would be unfortunate; and that “[i]f there are reservations about the approach propounded for the CRPD, it is for users, practitioners and others in the field to come up with an equally clear and intellectually defensible alternative.” (Bartlett “The United Nations Convention on the Rights of Persons with Disabilities the Future of Mental Health Law” Psychiatry: 2009, 8:12, pages 496-498)  Of course the problem with the approach advocated with the new position outlined by the Office of the High Commissioner is that it has not been developed and communicated (as of yet) to State Parties in a clear and concise manner.  The lack of clarity is unfortunate as many jurisdictions around the world are currently engaged in domestic law reform programmes.

Those seeking immediate ratification of the Convention on the Rights of Persons with Disabilities are often faced with a difficult choice – to accept legislation which does not correspond with those ideals set out in the Convention in order to ratify, and seek further reform following ratification, or to delay ratification until appropriate legislative, political and programmatic reform has occurred.  Whichever path is chosen, no country is regarded, following ratification, as being in perfect compliance with every provision in the Convention.  The most significant challenge remains the need for public debate and decisions on how implementation should happen, what steps are needed to achieve this, which should be taken immediately, and which are open to progressive realisation.  There are many reasons to introduce the reforms discussed, in addition to the Irish government’s commitment to ratify the CRPD.  Not least, as Gabor Gombos reminds us, because mental health is everyone’s issue.