Law must be changed in order for rights to be realised


Are human rights for mental health now the new buzzwords? We (Ireland) need to get our house in order to truly support human rights. In recent weeks, we saw the World Health Organisation visited Ireland in order to launch a training programme, Quality Rights, around human rights. While this is of course positive and excellent training, if we are really serious about human rights, what’s really required are legislative changes that will make those rights real. Otherwise the training will be meaningless – just window dressing in a system that uses coercive practices backed by law. Human rights cannot be upheld in such a system.

Back 75 years ago, after two bloody wars, countries came together to discuss how to ensure that we would not have war again. The  UN Declaration of Human Rights was created, it was new and novel at the time but it built on the structure of the Code Napoléon. To date 193 member states of the United Nations have ratified at least one of the nine binding treaties influenced by the declaration, with the vast majority ratifying four or more but unfortunately unless rights are enshrined in member states law they are at best aspirational. 

Amnesty International saw that rights in relation to mental health were being violated and there was a 10 year Irish campaign from Amnesty International entitled Mental health is a human rights issue. The campaign ran from 2003 – 2013, it was funded by the Ryan family and the brief was handed over to Mental Health Reform when Amnesty finished up their work. 

During this time, as disability including mental health was considered so neglected by counties the UN again came together to create a document in 2006 this was called the Convention on the Rights of People with Disabilities (UNCRPD), this contained no new rights but what they hope was that governments would implement laws in their own counties to ensure that people with disabilities were afforded same rights and enjoy the same freedoms. This was signed by Ireland in 2007, but not ratified until 2018. 

In preparation for ratification of the UNCRPD Ireland had to get our legislation in place, gone was the Lunacy Act of 1871, the Marriage of Lunatics Act 1881 and the Wards of Courts system. We have seen some legislative change in the form of capacity legislation and the creation of the Decision Making Support Service. 

Change on the horizon?

However, the government of Ireland has still not signed the optional protocol, this is an additional agreement to the United Nations Convention on the Rights of Persons with Disabilities. It comprises an individual complaints mechanism for disabled people who allege that their rights under the UNCRPD have been denied. It enables individuals or groups, who claim that their rights have been breached to make a complaint to the United Nations Committee on the rights of the person with disabilities.

There is will there to make these changes, but it seems that narrow vested interests in Ireland are managing to stymie change.

For example, in October 2022 the Oireachtas Sub-Committee on Mental Health Report on Pre-Legislative Scrutiny of the Draft Heads of Bill to Amend the Mental Health Act 2001. 

Some of the recommendations contained in the report are: 

  1. The Sub-Committee recommends that a stronger focus needs to be put on a human rights-based approach within the proposed legislation and the proposed heads need to fully adhere to the spirit and rationale of the UN Convention of the Rights of Persons with Disabilities.
  2. The Sub-Committee recommends that the General Scheme be amended to remove references to the term ‘mental disorder’ and replace it with ‘persons with psychosocial disabilities’ in line with the UNCRPD and the social model of disability.
  3. The Sub-Committee recommends that the State should ratify the Optional Protocol of the CRPD at the earliest possible opportunity.
  4. The Sub-Committee recommends that the reform of mental health legislation must be accompanied by State measures, including legislation, aimed at ensuring less restrictive forms of treatment in the community are available and the ultimate eradication of coercion in the treatment of persons with psychosocial disabilities. This includes investment in community-based support and services for persons with psychosocial disabilities and through assisting persons to utilise the Assisted Decision Making (Capacity) Act 2015 to exercise their capacity. The provisions in the Assisted Decision Making (Capacity) Act 2015 will need to be extended to all citizens, including those involuntarily detained, in order for this to be possible.
  5. The Sub-Committee recommends that there is close alignment between the relevant mental health legislation in compliance with the standards of the CRPD.

The Mental Health Act was to be before the Dáil this autumn but it never made it on to the business of the Dáil. This non scheduling could be seized as an opportunity now to build on the work of the World Health Organisation with the United Nations High Commissioner for Human Rights, who in October published the Mental Health Human Rights and Legislation document. This document is a roadmap to support countries to reform legislation in order to end human rights abuses and increase access to quality mental health care, it replaces their work from 2005 as that was not fully inline with UNCRPD. 

This document comments on the following: 

  • Human rights abuses and coercive practices in mental health care, supported by existing legislation and policies, are still far too common. Involuntary hospitalisation and treatment, unsanitary living conditions and physical, psychological, and emotional abuse characterise many mental health services across the world.
  • While many countries have sought to reform their laws, policies and services since the adoption of the United Nations Convention on the Rights of Persons with Disabilities in 2006, too few have adopted or amended the relevant laws and policies on the scale needed to end abuses and promote human rights in mental health care.
  1. Promoting more effective community-based mental health care

The majority of reported government expenditure on mental health is allocated to psychiatric hospitals (43% in high-income countries). However, evidence shows that community-based care services are more accessible, cost-efficient and effective in contrast to institutional models of mental health care. 

The guidance sets out what needs to be done to accelerate deinstitutionalisation and embed a rights-based community approach to mental health care. This includes adopting legislation to gradually replace psychiatric institutions with inclusive community support systems and mainstream services, such as income support, housing assistance and peer support networks.

2. Ending coercive practices

Ending coercive practices in mental health – such as involuntary detention, forced treatment, seclusion and restraints – is essential in order to respect the right to make decisions about one’s own health care and treatment choices.

Moreover, a growing body of evidence sets out how coercive practices negatively impact physical and mental health, often compounding a person’s existing condition while alienating them from their support systems.

The guidance proposes legislative provisions to end coercion in mental health services and enshrine free and informed consent as the basis of all mental health-related interventions. It also provides guidance on how more complex and challenging cases can be handled in legislation and policies without recourse to coercive practices.

3.  Using the guidance to adopt a right-based approach to mental health 

Recognising that mental health is not the sole responsibility of the health care sector alone, the new guidance is aimed at all legislators and policy-makers involved in drafting, amending and implementing legislation impacting mental health, such as laws addressing poverty, inequality and discrimination.

The new guidance also provides a checklist to be used by countries to assess and evaluate whether mental health-related legislation is compliant with international human rights obligations. In addition, the guidance also sets out the importance of consulting persons with lived experience and their representative organisations as a critical part of this process, as well as the importance of public education and awareness on rights-based issues.

While the guidance proposes a set of principles and provisions that can be mirrored in national legislation, countries may also adapt and tailor these to their specific circumstances (national context, languages, cultural sensitivities, legal systems, etc.), without compromising human rights standards.

My wish is that by the 80th year (2028) after the signing of the UN Declaration of Human Rights, Ireland will have taken all the steps necessary to treat all its citizens equally. In my lifetime I have seen changes in rights for groups of people like the LGBTQI+ community, children and women. This time let’s do it for the rights of people with disabilities,  the Irish government can make our society better with legislative change that impact on service provision, they can focus on tackling the social determinants of health and providing people with experience of mental ill health total equality as set out in the UNCRPD and also hope for a future without fear.  

We have a chance now to make our laws world-leading. Let’s put human rights at the centre of everything in mental health. Let’s listen to people who have been harmed by services and practices, let’s once and for all kick coercion out of services that deal with people at a vulnerable time.