The 2001 Act is out of date and does not comply with standards on international human rights, writes COLM O'GORMAN
THE MENTAL Health Act 2001, setting out the circumstances in which a person may be admitted to, detained and treated in a hospital against their will, is not human rights compliant and must be urgently updated and amended.
Although a relatively new piece of legislation, introduced to ensure Ireland was compliant with requirements of the European Court of Human Rights, there have been a number of developments both domestically and internationally that make change necessary. These include the publication of new mental health policy in 2006, A Vision for Change, and the introduction of the UN Convention on the Rights of Persons with Disabilities in 2007, which includes people experiencing mental health problems.
Both of these documents represent huge changes since the introduction of the 2001 Act, and challenge us to change our approach to mental health.
International human rights bodies have also highlighted the urgent need to reform the Act. In June, the UN Committee Against Torture told the Irish Government the Mental Health Act 2001 was not human rights compliant, and made a series of recommendations about how it should be updated.
We welcome the commitment in the Programme for Government and by the Department of Health to review the Act against international human rights standards, and in particular the UN convention, in consultation with stakeholders and most crucially people who use mental health services. The Government has stated this will be a full and thorough review. We believe this opportunity must be used not only to update the law, but to support a cultural shift in how mental health services are managed and delivered.
We can change out-of-date attitudes and promote the understanding, championed in the UN convention, that the whole of society will benefit if people with mental health problems have their rights fully respected and are given the opportunity to recover within their communities.
At the most fundamental level, the Act can deprive people of their liberty because of a severe mental health problem. Such powers need to be carefully monitored and must meet international human rights standards. Inpatient treatment must be a last resort.
People with mental health problems should be treated by teams including a cross section of disciplines, including (for example) social workers, occupational therapists and psychologists, in addition to medical staff.
As part of a review of the Act carried out by Amnesty International, we have heard from a number of individuals who have faced appalling situations. These include voluntary patients alleging they would be made involuntary if they chose not to comply with treatment, highlighting the lack of protections for voluntary patients.
The use of tribunals, which independently assess whether the correct procedure for admission and detention under the Act has been followed, and accordingly whether detention should continue, needs to be examined and updated, because there are many reported inconsistencies in their application. There needs to be much stricter guidelines controlling the administration of treatment against people’s will, and we believe the Act should be extended to cover the use of chemical restraint – when medication is used to control people, rather than to aid recovery.
The Act as currently framed means Ireland’s mental health service is overly focused on inpatient care. Yet, successive Mental Health Commission reports point out the over-reliance on hospital-based care and medication in Ireland is not the best approach for recovery. The 2011 report from the European Committee for the Prevention of Torture also highlighted a number of concerns with the 2001 Act. These include the lack of protection for voluntary patients, the need to amend the Act in relation to the use of electroconvulsive therapy, and the lack of an independent capacity assessment.
It is also essential that this review take into consideration the wider context. It is acknowledged our mental health system needs a radical overhaul. While there has been important progress in certain important areas such as closing old institutions and building new child and adolescent facilities, much urgently needs to change. Recovery and the individual’s human rights must be at the heart of the system.
We need a system where people can be treated in their own community wherever possible. Yet fully staffed, multi-disciplinary community mental health teams have not been developed across the country, despite this having been government policy since the early 1980s.
The review of the 2001 Act is an opportunity to drive wider reform in mental health. The report A Vision for Change by the Independent Monitoring Group recommended the use of legislation to assist with implementation of our mental health policy, as part of the planned review, should be considered. The World Health Organisation has recognised legislation can play a major role in promoting community-based care for people with mental health problems and in reducing involuntary admissions.
Ultimately, people experiencing mental health problems must be supported when they need it. They need autonomy to make decisions about their own healthcare, and they need to have no fear about the treatment they get. Fundamentally, we need a response to mental health in this country that makes human rights a reality for people with mental health problems.
Colm O’Gorman is executive director of Amnesty International Ireland