Human rights feature strongly in a new law book, writes Carol Coulter, Legal Affairs Correspondent
The Mental Health Act of 2001, intended to deal with deficiencies in our mental health legislation, could be open to challenge under the Constitution and the European Convention on Human Rights, an expert in mental health law believes.
Anne-Marie O'Neill has just published the first extensive book on the subject, entitled Irish Mental Health Law. It addresses the position in Irish law of a person with mental health difficulties or with a mental disability.
O'Neill trained as a barrister in England, and lectured in law and practised in commercial law there. She then worked as assistant director of research in Goodbody solicitors, before moving to the Law Society library.
She began work on mental health law in 1995, when there was little work done in this area, and she saw there was no source outlining the rights of people with a mental disability. She was awarded a PhD for her thesis, which became the basis for the book. "My aim was to do two things - to address misconceived public perceptions of people with mental health difficulties, and to highlight the ways in which Irish mental health law might be reformed," she says.
"People with mental disability are people with many characteristics of which only one is a disability."
She says that when framing mental health legislation, law-makers should consult sufferers. "The psychiatric health system is designed for the convenience of the service-providers," she says. "Clients are not able to assert their rights. People are afraid of the stigma attached to psychiatric illness. There is a feeling the law should not be involved in mental health issues. That is wrong. The law should be involved.
"The law has a very practical role to play in the development of modern psychiatric practice and, in particular, in making it more open and accountable, ensuring judgments about a person's mental health are based on sound, accepted and relevant medical principles and that the interests of the vulnerable person are paramount in any decision."
She says the United Nations principles for the treatment of people with mental illness, along with the Council of Europe recommendation on the same subject, states that people should be treated in the least restrictive environment possible, consistent with appropriate treatment. This should be embodied in domestic law. She is very critical of aspects of the 2001 Mental Health Act, which she feels could face a High Court challenge as incompatible with the Constitution and the European Convention on Human Rights.
Referring to the Mental Health Tribunals, provided for under the Act, and which will decide on whether people should be detained in a mental hospital, she says the Minister for Health and Children appoints the Mental Health Commission, and this appoints the members of the tribunals. These include the independent consultant psychiatrists who will report on whether the person is suffering from a mental disorder and also the patient's legal representative.
"This is likely to be in breach of the principle of natural justice and also Article 5 of the European Convention on Human Rights," she says.
"This provides that everyone who is deprived of his liberty is entitled to take proceedings by which the lawfulness of his detention can be decided speedily by a court. 'Court' includes mental health tribunals. The minimum requirements for a 'court' include independence of the executive and the parties and impartiality, as well as the power to give a legally binding judgment."
If all the tribunal members are appointed, directly or indirectly, by the Minister, this violates the principle of independence and impartiality, she believes.
"The Mental Health Act is a carers' charter. The people affected should be consulted. We are far too fond of an institutional response. We have a higher rate of admission to mental hospitals here than in England or the EU."
She also says that, on admission to hospital, people with a mental illness should have the right to comprehensive treatment, which should include psychotherapy and other psychological therapies.
"'Lack of insight' is all too frequently being used as a justification for the re-admission of a patient to hospital, when nothing has been done to develop that patient's insight into his or her condition," she says. She says that the inspector of mental hospitals, Dr Dermot Walsh, had also criticised the absence of any treatment other than drug therapy for many patients in mental hospitals.
In her book, O'Neill also argues that patients should be able to make legally binding "advanced directives", that is, at a time when they are mentally competent, state what treatment they wish to receive if and when they become mentally ill and no longer legally competent. This would involve a doctor certifying they were competent when making the directive, and it being certified by a solicitor as a legal document.
• Irish Mental Health Law is published by Firstlaw.