Dr Brendan Kelly: Mental Health Legislation and Human Rights in Ireland: What Next?
H Brendan Kelly is my name I’m a psychiatrist at the matter hospital and a senior lecturer at UCD and I’m going to talk about mental health legislation and human rights in Ireland um this is a topical issue the mental health act 2001 is currently being revised there is an interim report uh with suggested revisions and that’s now being considered by an expert group appointed by the minister and there will be changes to the legislation within the next year or two and and this is important the human rights aspect of this is clearly important if we go way back in the past to 1817 when Ireland was a part of the United Kingdom of um Great Britain and Ireland they sent a a commission to Ireland to look at the uh the fate of the lunatic poor and they found that when a strong man or woman develops mental disorder in Ireland the only way they manage is by making a hole in the Floor of a cabin not high enough for the person to stand up in with a crib over it to prevent him getting up the hole is 5T deep they give The Wretched being his food here and there he dies so there’s an idea that prior to the asylums in Ireland the Mia lived Charmed lives on the Village Green and the baker gave them bread and they slept in the farmer’s barn and so on and that is just not true at that time people with mental illness died young and badly this couldn’t happen today right well the Guardian newspaper reporting from Central London in 2010 wrote that this man was found dead from heart disease with hypothermia he was a man with schizophrenia he lived in a damp freezing flash with mold on the floor and exposed electrical wires boiler broken bathroom collapsed and there was a smell his conditions were Dreadful despite four years of pleading from the family NHS staff would not intervene thinking they would be violating his human rights so in in the human rights sort of discourse this is known as he died with his human rights perfectly intact all right and this is you know how has this come to happen that human rights have ended up not working for individuals and this is what I want to talk a little bit about today especially in the context of mental health so what are human rights the this is elanar Roosevelt with the universal Declaration of Human Rights made out by the UN a human right is something you’re entitled to by virtue of the fact that you’re a human there’s no other uh qualification needed you don’t need to have capacity or not have capacity or be rich or poor you have a human right because you’re a human being um people don’t Grant you rights they don’t take them away either you still have them all the time all that’s happening is they’re being recognized or they’re being violated but you have the rights and there are two kinds um civil and political rights things like not getting um put in prison arbitrarily and voting and then the economic and social rights are ones that are to be uh achieved progressively by countries like the right right to Health Care the right to a standard of living and so forth these rights depend on how wealthy or poor a country is and they generally have less of an edge to them than the civil and political rights but there what that’s what human rights are and why do we talk about these in relation to mental health law well I think I’ve already shown that people with mental illness um especially severe mental illness tend not to get an equal sort of bite of the Apple even equality legislation is often difficult for them to to access and to make work for them the way that other people can make it work and the history of psychiatry in this regard isn’t exactly thrilling um when you look at the uh institutions and the asylums and the kinds of treatments that have happened in the past it’s not particularly uplifting now there were good moments there there have always been reformist movements um like the famous Pinel but these have always been been balanced by large custodial asylums such as Bethlehem and um and indeed elsewhere and some of you will have seen a TV program about the asylums in Ireland maybe last year you can still see it on the internet looking at the growth of these institutions and how large public institutions with up to two and a half thousand people in them grew in Ireland and elsewhere and they grew because of a broad societal complicity families Keen to Keen to move people on families who couldn’t cope um and human rights were were certainly abused so what are the standards we’re looking for in in a law well The Binding the legally binding document here is the European convention on human rights and it’s worth reading through this everyone has the right to Liberty and security of person no one shall be deprived of Liberty save in the following cases and in accordance with a procedure prescribed by law and one of these is the lawful Detention of persons for preventing infectious diseases persons of unsound Mind people with alcohol problems or people with substance misuse problems or vagrants of all things so this is the European convention and it’s obviously um several decades old so the language is objectionable by today’s standards but it says that people in these categories can be deprived of their Liberty if there is a national law permitting it is do we have a national law for detaining people to prevent spreading infectious diseases anyone yes we do in certain specific cases for example open TB if people aren’t taking medication they can be detained are compelled to take medication in the public good do we have a law for the Detention of persons of unsound mind yes we do um amongst others we have the mental health act 2001 do we have a law for detaining people who have alcohol or drug problems only no we explicitly do not have such a law and do we have a law for detaining vagrants simply on the ground that they are vagrants we do not thankfully and but if we had it would not represent a violation of the human rights standards and the other point of relevance here everyone deprived of Liberty by arrest or detention shall take be entitled to take proceedings by which the lawfulness of detention shall be decided speedily by a court and release ordered so um do we have for persons detained under the mental health act are they entitled to take proceedings yes in fact we exceed that we force them to take proceedings there must be a mental health tribunal one of the suggestions in the revision the interim report revising the ACT is that people should be able to wave the right to a tribunal if they don’t want it and if they possess capacity but in any case we now exceed this requirement um and who decides the lawfulness of the detention is it a court in Ireland it’s a tribunal but there is good precedent from Europe that tribunals once they are properly composed independent in character and um judicial in nature count as courts and it must be speedily H how soon do you have a tribunal if you’re detained under the mental health Act within how many days 21 days is that speedily who thinks it’s speedily okay a small number of people thinks it’s think it’s speedily thanks Eric you’re the only one um do does anyone think it’s not speedy 21 days well it’s hard to know the European courts have ruled on specific cases 55 days which was the case in Finland is not speedy by any means 14 days is Speedy so we’re probably there or thereabouts according to the European in courts and can a tribunal order the release of the individual it can yeah it used to be the case but they pretty quickly fixed that so they’re what we need to adhere to in terms of um hard European uh human rights standards these are legally binding there’s only one one place there where I would have an issue which is about a tribunal being a court one of the characteristics of a court is that it generates case law so that if someone going in front of a court has the opportunity to look at previous judgments so as to present their case as best as possible do mental health tribunals generate case law for public consumption the ACT says tribunals are to be held in private um and so the amount of information from them is very limited does that mean they don’t count as the court under the ECR it’s hard to know the who has taken these standards and published a book which is free to download if you punch in wh resource book on Mental Health um the who which is part of the UN has taken the UN the universal Declaration of Human Rights and various other things and come up with a series of standards that mental health law should meet and it’s long document in the book um you can buy the book as well because it’s one of these huge PDFs um and it asks a lot of questions about National Law it asks under A1 there does National legislation have a preamble to emphasize the human rights of persons with mental disorders do we does our legislation have a preamble emphasizing the human rights of persons with mental disorders has anyone read the pream to the mental health act 2001 and committed it to memory am I right in understanding there are people here from the Mental Health commission are there Representatives here from the inspectorate of Mental Health Services do we have service users do we have clinicians do we have all kinds of people and nobody knows shame on you all I know what I’m just not saying our legislation is very clear in its Preamble that it’s a piece of legislation for the Detention of persons um with mental disorders and for their treatment there is not a word about uh it being a piece of legislation a w w with an overarching human rights uh component so the who would not be happy with that overall the who asks 175 questions of every bit of national mental health legislation and there are 27 categories and I’m going to talk a little bit about how we do um now I’ve dumped um nine of the standards because they’re related solely to offenders or children just to keep today focused on adults so I apologize to the child psychiatrists and the forensic psychiatrist who is present today so how do we do well we looked at this in some depth in the international Journal Psychiatry and law last year Ireland meets 80 out of the 166 standards under the current legislation that’s a mark of 48.2% is that a pass Mark for part of my education 40% was a pass mark thank goodness because that just about got me through but then in college it went to 50% so are we happy with this 48.2% no no no it’s it’s not really great what are the big problems oops well as I said the legislation does not explicitly promote human rights it does not Accord specific rights to families or carers the position of voluntary patients is not addressed nor that of vulnerable groups nor does it guarantee the economic and social rights that the who would like to see it guaranteeing if we look a tiny bit more closely here at some of the standards so N means the number of standards that the who thinks the legislation should meet so Ireland in terms of its Preamble only scores a one out of six if you look at point B we’ve pretty good definitions of mental illness C we do really badly on access to Mental Health Care the legislation does not contain anything about people being entitled to access a certain standard of care the rights of Mental Health Service users we get five out of 16 and the big problem here is right the right to information this is the big problem within this category and the rights of families or other carers we get a zero and I’m going to talk about that in a quick minute um if you look at the bottom though we do pretty good on involuntary admission and In fairness to the legislation it is very focused on involuntary admission that is what the mental health act 2001 set out to do and it does a pretty good job of looking after involuntary admission however if you look at Ireland as a whole 90% of people with mental health problems are treated in primary care so there’s no question of involuntary admission for them of those who see a psychiatrist 90% are treated as patients and there’s no question of involuntary admission for them and of those who are admitted 90% are voluntary patients as well so the focus on involuntary human rights standards while important you know it doesn’t affect the majority of persons with mental health problems in Ireland if you look at the rights of families a bit more closely it asks does the law entitled families are primary carers to information about the person with the mental disorder um and various other things and Ireland scores zero on this we do not Accord rights to family members or carers and this is a big problem and it does create difficult situations um in tribunals and the like where family members for example you know don’t have any particular right to attend or have their point of view heard which is a big concern we don’t do very well for voluntary treatments as I mentioned and and most specifically the definition of a voluntary patient in Ireland does not require that the patient has capacity it’s just a person who’s in an approved Center receiving treatment and is not detained and the Supreme Court has upheld that this is this is the right thing although it’s extremely questionable and the other thing uh the other category the legislation really fails on is the nonprot patient this is someone who’s compliant with what happens but probably lacks capacity and just goes along with it and this is for example a person with uh let’s say a very low IQ um who just is brought to hospital by family or by the guards not detained and ends up just sitting there because they’re a generally agreeable person but lacks capacity to protest the way they probably should if we look at the other categories briefly and the uh we’re pretty good in terms of seclusion and restraint because the the rules from the Mental Health commission are binding whereas in the UK they’re not binding and the final thing the oversight on review me mechanisms is very interesting we just score 14 out of 24 and interestingly we get full marks for our tribunals which are great the reason we don’t do well according to the who here is we don’t have a binding complaints mechanism for people to make a complaint about services or to make a complaint about tribunals the the they want legally binding timelined complaints procedures which we which which don’t meet the who requirements and the final the the final batch of these standards you can see we do very badly in terms of um the mental health law prohibiting discrimination um according housing rights employment rights and so forth and when you look at this for example the the who says does the law ensure non-discrimination of people with mental disorders in the allocation of Housing and our law doesn’t go there and you can argue it shouldn’t go there H surely access to housing belongs in housing legislation and in equality legislation but history shows very clearly that people with mental illness particularly schizophrenia do not access the courts the way other people do they do not assert their rights and there’s a lot to be said for including a positive articulation of these rights in mental health legislation but we don’t do it at present does our law uphold the rights of people with mental disorders to the full range of civil political economic and social rights and it doesn’t our legislation doesn’t even include a rhetorical flourish in that direction which could be easily inserted into a preamble so to summarize we meet 80 out of the 166 standards the who would like us to meet and those are the chief def ET and the introduction of proper capacity legislation would help us along the way a great deal as well as the current revision of the uh the mental health act but today rather than just giving out I’ve decided to present the solutions to this problem the solutions to these problems have eluded doctors and social reformers for centuries but you’re extremely fortunate to be here today because I have a three-point plan and um I’m going to present it now the best way to increase observance of the human rights of the mentally ill the first one is to do with social policy then mental health policy and limping in a very poor third in my view is reforming mental health law um and I have particular reasons for these these opinions um if we look first at social policy a lot of you have probably read this book have hands up anyone who’s read this book The Spirit Level okay well in the unlikely event with me being invited back next year um thank you very much I’m going to ask the question again and I want every single hand up in the air for this because this is an extremely good book about equal and unequal societies and I’ve stolen all these graphs from it if you look at income inequality you’ve got low income inequality there and high income inequality a straight line up the more unequal a society is the more mental health and social problems more health problems and social problems in that Society the more unequal a society is the more drug misuse there is in the society now this isn’t about absolute income in a country it’s about inequalities within the country so it’s not about being rich or being poor in a global sense it’s about being rich or being poor in your country and here it is income inequality and mental illness and the only exception here um is that Italy it appears is very unequal but no one seems to care and it it just it just doesn’t seem to matter to them the way it matters to the rest of the world um let’s leave Italy out of this okay the more unequal a society is the more mental health problems um there’s going to be in there and this brings me to my big point which is this book this is another book everyone has to have read by next year by sen and it’s about an idea of justice and I really like this book because sen is extremely clever and he talks about an arrangement focused view of justice and a realization focused view of Justice an arrangement focused view means that we try to write the perfect set of laws and regulations and and get it all looking perfect on paper Okay a realization focused view says okay you’ve got your laws and they’re okay but what’s actually happening does an improvement in law actually translate into in real life what you intended it to do and Sen says that emphasizing the first you need a bit of it okay but no one knows what the perfect law looks like we couldn’t agree on it between ourselves and in any case it’s con consequences are still going to be a little unpredictable and he wants a shifting of balance to a realization focused view of justice and do people feel things have been just do people feel they’re being treated right and this is I think this is really important in mental health law that we need to move away from trying to get the law perfect and look at what happens in the real world and here sadly is what happens in the real world um this is my stop in five minutes signal okay so I have five more minutes um so we looked at this we we tried to figure this out about about Ireland and we’ve done this we’ve made this paper in this graph if social class 10 is the lowest social class in Ireland and in Ireland there’s about 19% of people in social class 10 this is all of Ireland and there’s about 42 involuntary admissions per 100,000 per year in that social class in Ireland okay well sorry about about about 39 sorry about 39 if we we move to St James’s Hospital which is a deprived catchment area you can see about 40% of people are in social class 10 and the involuntary admission rate is higher okay now it gives me no joy whatsoever to show you the next dot here which is where I work which is the matter Hospital which is the most socioeconomically deprived with 51% of people in social class 10 and a higher rate of involuntary admission so this really matters my point is that social Arrangements really matter in terms of in terms of mental health problems the incidence of them according to the book I showed you earlier but also there’s some kind of socially mediated outcome as well there’s something to do with deprivation straightforward socioeconomic deprivation I don’t think we say poor anymore poor is gone it’s socioeconomically deprived and and there’s something about that seems to increase involuntary admission increase illness and increase overall problems now as a result of various social Arrangements um the the effects of illness which undoubtedly exists but the effects are magnified uh resulting in in a loss of Liberty so in terms of social policy I see no alternative to Revolution we’re going to just have to lead a revolution and change the social order so that people with mental illness get a better bite of the Cherry in the event that no one wants to join me in a revolution today um we can look at changing mental health policy now policy is extremely interesting look at this graph 1963 20,000 people in psychiatric hospitals in Ireland 40 years later in 2003 that was down just around 4,000 now that’s an 80% reduction all right and you have to believe that increased the observance of people’s right to Liberty okay how did that happen here’s another question what didn’t change at all in that four decade period mental health law all that was under the 1945 act the the the 2001 when hadn’t really started by 2003 so what happened there was um Society changed Ireland changed the world changed and suddenly 80% of people were discharged or you know some of them died but there weren’t new admissions to replace them what happened there was a huge change and it was a change in policy all right it wasn’t a change in law and people often argue that as the uh Psychiatric Hospital population comes down the prison population goes up and you can see the lower line is the prison population and it went up a bit so there was a bit of that going on but still there was a huge net liberation of about 14,000 people over that period and the law did not change what changed were Mental Health Services um and interestingly you know as the asylums closed obviously the amount of Health budget devoted to Mental Health Services declined um but look look look it went back up to 7% um last year so there may indeed there may indeed be some hope yet so mental health policy is what produced that huge change and the Third Way H is through mental health law and without going into it in depth uh it’s my view the the um definition of voluntary patient needs to be changed substantially we need some case law from tribunals um if someone is detained um and they appeal a appeal a tribunal decision to a circuit court we need to Mo move the burden of proof um which is currently on the patient the are the detained person the detained person must demonstrate in the circuit court that they are not mentally ill now I would have grave difficulty demonstrating that I’m not mentally ill it’s very hard to prove you’re not something and certainly I think we can expect the new legislation to shift the burden of proof back to the detaining authority in the Circuit Court um there’s a principle of best interest in the legislation and that all decisions in under the mental health act need to be taken in the best interest of the individual there’s a strong move to change that the UN convention on the rights of persons with disabilities would suggest a principle of dignity is more workable and balanced and we need mental capacity legislation now I’ve been talking about this kind of thing for some time and um much to my uh embarrassment I’ve now been put on the expert group charged with revising the mental health act so we’re going to have to put this into practice um the minister appointed a group you can see some of the members there uh we met for the first time in September we’ be meeting four times before the end of the year and we’ll be advising the minister in March um and I do believe changes to the law are important but I believe a much broader kind of change is needed and much broader societal change is needed if the possibilities offered by our current legislation and by our new legislation uh would can be fully realized now a solution to a lot of this has eluded people for centuries um so it’s it’s it’s hard to be especially hopeful but there’s no point being cynical about it either and um hopefully when we report in March there will be some positive changes to the law thank you very much [Applause]
Dr Brendan Kelly gave a talk on #mentalhealth legislation and #humanrights in Ireland at the Founder’s Day #conference from St Patrick’s Mental Health Services in 2012.
Founder’s Day is an independent educational event that provides an opportunity for those engaged in mental health research to present their work and for key policy-makers and service providers to debate the important issues related to mental #healthcare service provision.
The topic of mental health legislation and human rights in Ireland was returned to at our 2021 Founder’s Day conference, which you can find out more about below.
https://www.stpatricks.ie/media-centre/news/2021/december/founders-day-exploring-law-and-human-rights