Serious Gaps in Human Rights Protection in Mental Health Act 2001
Press Release
14 October 2011
The Irish Human Rights Commission (IHRC) today called for human rights standards to be at the core of the current review of the Mental Health Act 2001. In its submission to the Department of Health on the Proposed Review of the Mental Health Act 2001, the IHRC emphasised the need for more robust human rights safeguards particularly in relation to admission and detention, medical treatment, restraint and seclusion, oversight of mental health services and the treatment of children and young persons. The IHRC also emphasised the importance of ratifying the UN Convention on the Rights of People with Disabilities without further delay, as recommended by the United Nations Human Rights Council Working Group on Ireland’s Universal Periodic Review in Geneva on 6 October 2011.
The Need for a Review
Dr Maurice Manning, President of the IHRC said, "Since 2001, there have been a number of major developments in the mental health landscape which need to be reflected in the statutory legal framework. For instance, a new mental health policy, ‘A Vision for Change’ was published in 2006, there have been a series of judgments from the European Court of Human Rights and domestic courts in relation to procedures for the treatment of mental illness, and the Convention on the Rights of Persons with Disabilities was adopted by the UN in 2007 which Ireland is expected to ratify shortly." Dr Manning continued, "A review of the 2001 Act is therefore urgently required to ensure that the State complies with its human rights obligations. Amendments to the 2001 Act should be framed in a manner which starts with the presumption that every individual has capacity and an acknowledgement of the inherent dignity and individual autonomy of the person and their right to bodily integrity and health". The IHRC has also urged the Department of Health to ensure that the review of the 2001 Act is conducted in an inclusive manner and in the spirit of the principle of participation in political and public life outlined in the UN Convention on the Rights of Persons with Disabilities. Dr Manning said, "It is vitally important that all stakeholders, and particularly mental health service users be given every opportunity to participate in the review and to have their voices heard."
Children and Mental Health
In relation to safeguarding children’s rights, Dr Manning said "future mental health legislation must serve the best interests of the child and be underpinned by the protections set out in the Convention on the Rights of the Child. There is an urgent need for the inclusion of a separate section dedicated to protecting the rights of children and young people in any new mental health legislation, and clarity as to which provisions of the current Act (if any) apply to children and young people." Dr Manning continued "revised mental health legislation must include an absolute prohibition of detention of children (persons under the age of 18) in an adult psychiatric ward. The practice of placing children and young people in adult psychiatric wards and approved centres for adults represents a violation of the rights of children under a number of international instruments and should be absolutely prohibited. Children and young people under the age of 18 should be accommodated in an age-appropriate environment with access to physical and educational facilities in order to allow their personal, social and educational development to continue." Latest figures suggest that in 2010 there were 429 admissions of children to psychiatric units and while 274 of these admissions were to a child unit, 155 were to an adult unit, with 13 of those admitted being 15 years of age or younger.
Capacity Legislation
In conjunction with the present review, the IHRC urgently recommends the enactment of capacity legislation. Mr Éamonn Mac Aodha, Chief Executive of the IHRC said. "A revised mental health legal framework needs to be supported by appropriate mental capacity legislation which provides structures for supported decision-making in accordance with of the Convention on the Rights of Persons with Disabilities. At present there is no statutory framework underpinning the determination or review of a person’s capacity, and such determinations are made on an ad-hoc basis every day. This has huge implications for matters such as voluntary admissions and consent to medical treatment, and of course has an enormous impact on the individual’s rights to liberty, autonomy and privacy .." One group which the IHRC has previously expressed particular concern about are those patients admitted as "voluntary patients" under the 2001 Act, who lack the capacity to make decisions for themselves, but who are not afforded the procedural safeguards under the 2001 Act which are afforded to involuntary patients. Mr Mac Aodha, said, "We have been concerned for some time about the position of so called "compliant incapacitated patients" and the lack of safeguards with respect to their detention and treatment. A priority in this review must be to ensure that a patient would only be considered to be ‘voluntary’ if he or she has capacity to make a decision to be admitted to a psychiatric institution and has consented to such admission. This is another example of an area where the interplay between the 2001 Act and the proposed capacity legislation would be crucial."
Community Care
Recognising the increased emphasis on community care in the treatment of mental illness, and in order to ensure that mental health services are available accessible, acceptable and of a commensurate quality (the "AAAQs"), as required by the International Covenant on Economic , Social and Cultural Rights ("ICESCR") the IHRC recommends that consideration should be given to placing the core recommendations of the Report of the Expert Group on Mental Policy entitled "A Vision for Change" (January 2006) on a statutory footing without further delay. This follows from the IHRC’s previous recommendation that there should be a statutory definition of health and personal social services, which should also include "mental health services" and the entitlements of the service user when availing of such services. Mr. Mac Aodha added, "To ensure that mental health services are being delivered in a manner that is available, accessible, acceptable and of a commensurate quality the HSE should be obliged to take specific measures, for example to publish a detailed time-bound plan for the implementation of "A Vision for Change", and be obliged to report on implementation of the plans to the Oireachtas at defined intervals, with such reports to be published within a specified time period."
ENDS/
For further information, please contact:
Des Hogan
Deputy Chief Executive of the IHRC
Tel: 01 8589601
Notes to Editor
The power of the IHRC to make recommendations to Government derives from section 8(d) of the Human Rights Commission Act 2000 which provides that the functions of the IHRC include "mak[ing] such recommendations to the Government as it deems appropriate in relation to the measures which the Commission considers should be taken to strengthen, protect and uphold human rights in the State".
Section 2 of the Human Rights Commission Act 2000 defines "human rights" as
"(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution, and
(b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party."
Thus both Constitutional and international human rights standards comprise the definition.
The IHRC previously published a Policy Paper Concerning the Definition of a "Voluntary patient" under section 2 of the Mental Health Act 2001 in February 2010 and recommended that the Mental Health Act 2001 be amended in a manner informed by the principles contained in Article 25 of the UN Convention on the Rights of Persons with Disabilities and under Article 12 of the International Covenant on Economic Social and Cultural Rights.
In its Enquiry Report on the Human Rights Issues Arising from the Operation of a Residential and Day Care Centre for Persons with a Severe to profound Intellectual Disability (March 2010) the IHRC examined the State’s positive obligations in respect of health care, and duty to vindicate the right to health (including mental health) of all persons. The IHRC recommended, inter alia, that "health and Personal social Services would be placed on statutory footing; that the State take steps to enable it to ratify the UN Convention on the Rights of Persons with Disabilities without delay and that the State introduce capacity legislation and enforceable codes of practice concerning the assessment of capacity and supported decision making.