We are pleased to welcome this guest post from Dr. Claire Murray of University College Cork.
The Interim Report was published on the 21 June 2012 and followed a commitment in the Programme for Government to conduct a review of the Mental Health Act 2001 (MHA 2001) “in consultation with service users, carers and other stakeholders, informed by human rights standards.” The complete report is due to be published in late 2012/early 2013.
Following the enactment of the substantive provisions of the MHA 2001 in November 2006 a number of events occurred which rendered the legislation outdated almost as soon as it became operational. These were the publication of the Report of the Expert Group on Mental Health, A Vision for Change, which emphasised the importance of community based treatment, and the signing of the UN Convention on the Rights of Persons with Disabilities which is understood as introducing a paradigm shift in terms of rights discourse in relation to disability. In light of these developments the MHA 2001 is in urgent need of amendment. The review of the MHA 2001 is also taking place in parallel with the development of mental capacity legislation in Ireland. The intention is that Ireland will develop a human rights based framework to address issues of mental disability and that both pieces of legislation will dovetail effectively.
Overall the Interim Report has been broadly welcomed by civil society groups working in the mental health field (see the response from Mental Health Reform here and Amnesty International Ireland here). There is a concern, however, with the level of cross-referencing in the Interim Report to what will be addressed in the proposed Capacity Legislation. The riskis that very vulnerable people will fall between the cracks when complicated issues are being passed back and forth between Government departments (in this case the Department of Health and the Department of Justice and Equality). For some of the key points on this issue see here.
The Interim Report identifies a number of key themes under which to discuss its emerging recommendations: human rights and paternalism; a vision for change; children; voluntary, involuntary patients and capacity; consent to treatment; detention; and authorised officers. In relation to human rights and paternalism the Interim Report is particularly strong. The Report recognises that the MHA 2001 introduced a human rights ethos into mental health law in Ireland and that the principle of “best interests” was included to protect the rights of the patient. However, it goes on to state “the reality is that the principle has been interpreted by the Courts in a paternalistic manner. This paternalistic interpretation of the 2001 Act is undermining the significant advances in mental health law which the Act was intended to enshrine, and has given rise to concerns that the human rights aspects of the legislation have been diluted and diminished.” This paternalistic judicial approach to mental health law is evident throughout the case-law but it was illustrated very clearly in the case of P.L. v. St. Patrick’s Hospital  IEHC 15 (discussed here).
The Interim Report goes on to outline recommendations on how to ensure the rights-based ethos is protected, including revising the guiding principles to foreground the right to autonomy and self-determination. Recovery and least restriction are also proposed as core principles. In order to avoid the problems which currently exist because the courts are given no guidance on how to balance best interests with the other rights the Interim Report suggests that the Act should list a hierarchy of rights to “ensure that there will be no carryover of paternalism into any new legislation.” It is very refreshing for a report of this nature to name the paternalism inherent in Irish mental health law so clearly. Undoubtedly there is a need to amend the legislative provisions to address this issue, but I would also suggest that some form of judicial training on the significance of human rights in this context is also necessary if there is to be any noticeable move away from paternalism.