OPINION:THE DEPARTMENT of Health has begun a process of reviewing the Mental Health Act 2001 and in June published a steering group interim report. A further "expert" review process is now under way.
The interim report comments that it is important that each person should have a right to determine and participate as much as they possibly can in their own care and treatment.
It also states that revised mental health legislation should support the objectives of Vision for Change, the national policy on mental health in place since 2006, especially in relation to the promotion of community-based mental health services.
The interim report then goes on to advocate “a rights-based approach to mental health law . . . a move away from the paternalistic approach of the 2001 Act”.
There is a real risk of groupthink in the process of reviewing and revising such laws. Excluded from the current process are any of those clinicians or carers who provide for the most rapidly growing group of people with severe mental illness – not in the community, not in hospitals, but in prisons.
Progressive reform and liberalisation of mental health legislation has had many benefits. But like any health intervention, legal reform also has side-effects. It is now more difficult to provide treatment to those who because of paranoia and lack of mental capacity are unable to understand their own health needs.
Prisons increasingly act as psychiatric AE trolleys for such disabled citizens, mainly young men with schizophrenia. It should be obvious to any pragmatist that any principle (“rights based . . . a move away from the paternalistic approach“) that has such adverse consequences is either mistaken or misinterpreted in some part.
Groupthink allocates mental health legislation to the Department of Health and criminal insanity law to the Department of Justice, and surprisingly allocates mental capacity law and disability law to the Department of Justice also – a unique combination of groupthink and lack of joined-up thinking. There should instead be a shared functionality between this congeries of statutes that can best be compared to a Russian doll, starting with all-encompassing disability legislation, within which sits mental capacity legislation, then mental health legislation and (the smallest and most difficult to find) criminal legislation regarding the mentally disordered.
Legal groupthink holds that rights form a hierarchy and the right to freedom takes priority over all other rights. In the US, this doctrine is used to justify leaving untreated mentally ill people to wander the streets, homeless, hungry, helpless, tormented and deprived of dignity.
This is a strand of philosophy generally identified as “libertarian” – not to be confused with “liberal”. In the US the Tea Party wing of the Republican Party would be most closely identified with this “libertarian” ideology, aimed at shrinking the state and its expenditure on public services.
The recent Department of Health interim report follows this strand of academic legal thinking by attacking current mental health legislation as “paternalistic”. This arises from a mistaken translation of the legal Latin term parens patriae, the common law principle that the State (patriae), has parental (parens) obligations to care for the vulnerable amongst its citizens – a constitutional right also under article 40.1 and 40.3.
Far from being a patriarchal instrument of oppression, parens patriae (the paternalistic interpretation of legislation regarding the vulnerable and incapacitated) is a means for the judiciary to hold the executive to some limited welfare obligations towards vulnerable citizens, in the absence of a comprehensive health and welfare system for all.
The United Nations Convention on the Rights of Persons with Disabilities prioritises dignity and emphasises the obligation on states to provide assistance to those who cannot make decisions for themselves.
Such rights should be seen as a process not a hierarchy. There can be no dignity for the mentally disabled without the support necessary to regain health and autonomy. There can be no freedom to make one’s own choices until that autonomy has been restored. It is the purpose of mental health legislation to codify this practical pathway from disability to recovery.
Other countries have mental health legislation running to hundreds of sections to deal with all the legal complexities and social processes required to protect and support the mentally disordered person – Ireland has some of the shortest modern mental health legislation in Europe.
The review under way should aim to balance the swinging pendulum between dignity and liberty. Vulnerable mentally ill young people should not be falling through the net of the present laws and services into prison because of the direct consequences of their illnesses. For too long an uncritical groupthink about “libertarian” principles has worked against them.
Prof Harry Kennedy is executive clinical director of the National Forensic Mental Health Service, Central Mental Hospital, Dundrum, and clinical professor of forensic psychiatry at Trinity College Dublin. He writes here in his personal capacity as a doctor.