Legal opinion: Mental illness is an all-of-society issue requiring an all-of-society response

Last month, Minister of State for Mental Health Kathleen Lynch published the Expert Group Review of the Mental Health Act 2001. The report presents 165 recommendations which, if implemented, would bring radical changes to psychiatric care in Ireland.

In 2013, there were 18,457 psychiatric admissions in Ireland, of which the vast majority (89 per cent) were voluntary. Far greater numbers were treated on an outpatient basis in primary care or by community mental health teams and voluntary organisations.

The Mental Health Act 2001 introduced important protections of human rights, and Ireland’s involuntary admission rate is now relatively low, at 44 per 100,000 population, compared to 54 in England.

The Expert Group report proposes a further series of reforms. One of the key proposals is the replacement of the principle of “best interests” with a new set of guiding principles to govern decisions made under the Act. The proposed new principles are: (a) the enjoyment of the highest attainable standard of mental health, with the person’s own understanding of his or her mental health being given due respect; (b) autonomy and self-determination; (c) dignity (there should be a presumption that the patient is the person best placed to determine what promotes or compromises his or her own dignity); (d) bodily integrity; and (e) least restrictive care.

The expert group also proposes several other substantial changes, including redefinitions of “mental illness”, “treatment” and “voluntary patient” (now to require mental capacity); a requirement that, for all detained patients, admission and treatment “would be likely to benefit the condition of that person to a material extent”; additional protections for patients who are not detained but lack mental capacity; reduced burden on families and clearer access to medical care during the involuntary admission process; mandatory multidisciplinary input into detention and treatment decisions; earlier tribunals (to be renamed “mental health review boards”); shorter renewal detention orders; various measures relating to children; inspection of community facilities; better access to information; and provisions to ensure that any detained patient who has capacity to refuse electroconvulsive therapy (ECT), and is unwilling to receive it, has that decision respected.

Unwilling

This deletion of “unwilling” from the ECT provisions is an important step forward, even though it will affect only a very small number of patients. In 2012, there were 1,921 involuntary admissions and the “unwilling” criterion in the ECT provisions was relevant to just four of these, three of whom were also documented as lacking mental capacity to decide about treatment. As a result, ECT without consent was administered to just one patient solely on the basis of the “unwilling” criterion.

Despite these small numbers, it is still clearly essential to revise this provision, as the expert group duly recommends. It is, however, interesting that this ECT recommendation dominated media coverage of the report, which contains many other measures which are far more radical and will affect much greater numbers of patients and families.

For example, the report recommends deleting the word “unwilling” not just in relation to ECT but also in relation to continued administration of medication to detained patients. This means that no person, detained or otherwise, can receive medication against their wishes, once they have the mental capacity to make this decision.

Additional protections

For detained patients who lack capacity but still need treatment, the report recommends additional protections in addition to those already in place (eg tribunals), ranging from an external review of medication after 21 days (as opposed to the current three months) and a legislative requirement for multidisciplinary input into decisions about involuntary treatment.

The College of Psychiatrists of Ireland (of which I am a member) warmly welcomed the expert group report, noting that it “will advance the rights of those patients with mental illness who are involuntarily detained” and “recommends changes to protect those who lack capacity but who do not fulfil criteria for involuntary detention”.

However, the college also saw “this as a missed opportunity to improve appropriate access to multifaceted assessment and intervention for the majority of people with mental health problems”.

Notwithstanding these matters, it is clear the expert group report is a significant step in the continuous reform process that saw the number of psychiatry inpatients decline from the high levels of the 1960s to the relatively low levels today. But improving mental health law is insufficient on its own. These proposed reforms need to be accompanied by continued improvement of mental health services in line with national mental health policies in A Vision for Change (2006).

Many people with mental illness still face profound social and economic discrimination. The mentally ill are overrepresented in prisons and among homeless populations. They and their families experience stigma, underemployment and social exclusion. These adverse social, economic and societal factors greatly impair access to psychiatric and social services, and hugely amplify the effects of mental illness in people’s lives.

The solutions lie not only in mental health law and policy, but also in policies relating to housing, employment, justice and social welfare. Mental illness is an all-of-society issue requiring an all-of-society response.

Brendan Kelly is associate clinical professor of psychiatry at UCD and author of Dignity, Mental Health and Human Rights (Ashgate, 2015). He was College of Psychiatrists of Ireland nominee on the Expert Group on the Review of the Mental Health Act 2001. This article is written in a personal capacity