A new article in the International Journal of Law and Psychiatry critically examines proposed reforms to Irish mental health law, finding that it falls short of delivering the comprehensive changes required by the UN Convention on the Rights of Persons with Disabilities (CRPD).
The Mental Health Act 2001 is the primary piece of legislation regulating mental health services and safeguarding the rights of persons subject to the legislation in Ireland and is currently under review by the government.
The article, The reform of Irish mental health law: Aligning with human rights obligations, finds that the proposed new mental health laws retain coercive elements and do not fully realise human rights.
The author, Dr Charles O’Mahony proposes actionable recommendations to help ensure that the amending legislation better aligns with human rights standards.
As the paper points out, mental health and capacity law has shifted to a human rights-based approach under the social model / human rights model of disability as required by the UN Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD, which Ireland ratified in 2018, offers a framework for departing from practices, policies, and processes that have historically infringed upon the human rights of persons engaging with mental health services.
However, as the author points out, the Heads of Bill as currently written, do not comply with the CRPD, as they retain involuntary detention and forced treatment, which is fundamentally at odds with the interpretation of the CRPD.
The paper states:
“Ratification of the CRPD necessitates a revolutionary shift to fully realise the rights to liberty, legal capacity, and non-discrimination. While the Heads of Bill offers some reforms, it falls short of delivering the comprehensive changes required by the CRPD. Despite Ireland not being fully prepared to enact legislation compliant with the CRPD, the proposed reforms have the potential to better safeguard the rights of people subject to the legislation.”
Other areas of concern highlighted are:
- The proposed renaming of “Mental Health Tribunals” to “Mental Health Review Boards”, along with other amendments, do not sufficiently support or safeguard the rights of people under the legislation, failing to address the power imbalance within the existing tribunal system.
- The exclusion of persons from making valid advance healthcare directives when involuntarily detained is regrettable and discriminatory, perpetuating negative stereotypes about people experiencing mental distress. Advance healthcare directives should be provided on an equal basis with others, aligning with Ireland’s obligations under Article 12 of the CRPD.
The author in conclusion states:
“The law reform processes have not sufficiently given weight to the requirements of the CRPD. Nevertheless, this article has identified several areas where the amending legislation can be strengthened. Key to reinforcing procedural rights is the provision of independent, adequately resourced advocacy for children, young people, and adults and the development of supported decision-making.”