Defining the 'unsound mind'

LEGAL OPINION: FREQUENTLY THE issue of mental health is discussed in the Dáil, whether it is about acute services, incorporating…

LEGAL OPINION:FREQUENTLY THE issue of mental health is discussed in the Dáil, whether it is about acute services, incorporating mental health issues into the school curriculum or the recent reports on children in the care of the State. What is not so obvious is that a tenth of our population suffers from depression at any one time. So one tenth of our TDs may suffer depression too and may well not have a right to be sitting there as a result.

Under the Electoral Act of 1992, a person may be disqualified from being elected or sitting as a member in the Dáil and the Seanad if they are of “unsound mind”. Likewise, membership may cease should they become of unsound mind. A similar situation arises with regard to directorships. Under the standard Table A, Articles of Association, a director may be disqualified if the director becomes of “unsound mind”.

Under the Juries Act 1976 an “incapable person” shall become ineligible for jury service. This person is defined as “a person who suffers or has suffered from mental illness or mental disability and on account of that condition . . . regularly attends for treatment by a medical practitioner”. This is a very general definition and could well be interpreted as someone attending their GP for repeat prescriptions for antidepressants.

The term “unsound mind” keeps rearing its ugly head in many spheres though there is a lack of clear definition in legislation. Legislation falls far short of defining mental illness. Perhaps it is its complex nature which stops the definition from becoming determined. What of those who may have gone through a temporary mental illness? This is by no means provided for in the legislation referring to people of unsound mind. The present definition of incapable person may well affect a good percentage of the population, including some of our TDs.


The European Convention of Human Rights also uses the term unsound mind, though it usually appears in the context of the liberty of a person. In the case of Winterwerp v the Netherlands, it was agreed that the “term is not one that can be given a definitive interpretation . . . it is a term whose meaning is constantly evolving as research in psychiatry progresses”. The judgment highlights the difficulty and complexity in defining mental illnesses within legislation.

Who should determine who is and is not of unsound mind? The Rules of the Circuit Court make some attempt at how it should come about. It states that a medical practitioner must set out the nature and evidence of unsoundness “as to demeanour, conversation, acts and physical causes upon which the opinion of the deponent as to soundness or unsoundness of mind is founded,” which may well be prudent.

But perhaps the definition should not be required. Twenty-five per cent of the population of Ireland will experience mental health problem at some stage in their lives. If persons of unsound mind are disallowed from sitting in jobs there may well be even fewer people in employment than at present.

These provisions reflect the general lack of understanding of depression as seen in the 2011 Lundbeck Mental Health Barometer. Its survey found that almost a quarter of people think depression is a state of mind rather than an illness. That lack of understanding is reflected through governmental budgeting. In 2009, 212 people died from road traffic incidents and 527 people died by suicide. Yet the annual investment into road safety is 10 times that invested into suicide prevention.

Despite mental health being discussed so often in the Dáil there still remains an understanding gap. Recently in a debate on mental health legislation in the House of Commons, a number of MPs spoke of their own mental health problems. Would any members of the Houses of the Oireachtas come forward to speak of their own mental health? It is doubtful. Statistically, there should be at least 16 of them.

There is a need to remove stigmatisation and give respect to the term “mental illness”. The Government needs a change of attitude, of budgeting and of legislation.

Jane Jackman is a Legal Business Studies Graduate