Involuntary status and mental capacity for treatment decisions under Sections 4, 3, and 57 of Ireland's Mental Health Act, 2001: analysis and recommendations for reform.

Katherine Reidy,Brendan D Kelly

doi:10.1017/ipm.2020.136

Abstract

Although significant progress has been made in Irish mental health law in recent decades, the Mental Health Act, 2001 still falls short of properly protecting human rights. A consideration of human rights developments, both domestically and internationally, highlights the urgent need for reform. In this paper we consider Sections 4 ('Best interests'), 3 ('Mental disorder') and 57 ('Treatment not requiring consent') of the 2001 Act and related recommendations in the 2015 Report of the Expert Group on the Review of the Mental Health Act, 2001, and suggest specific areas for reform. Just as medicine evolves over time, so too does our understanding of human rights and law. While embracing a human rights-based approach to the extent suggested here might be seen as aspirational, it is important to balance achievable goals with higher ideals if progress is to be made and rights are to be respected.

Highlights

People with mental illness are amongst the most vulnerable members of society (Kelly, 2005)
The faculty pointed to the European Court of Human Rights (ECtHR) case of Winterwerp v the Netherlands, which considered the detention of persons ‘of unsound mind’ and argued that the ‘requirement for medical expertise in making a decision to detain an individual with a mental disorder’ necessitates ‘best interests a guiding principle in making decisions for involuntary admissions under mental health legislation’ (p.27)
Many of those in favour of retaining ‘best interests’ acknowledge that, as it stands, the concept is open to misuse and that further definition is required in relation to how the idea ought to be interpreted with respect to human rights

Summary

Introduction

People with mental illness are amongst the most vulnerable members of society (Kelly, 2005). The faculty pointed to the ECtHR case of Winterwerp v the Netherlands, which considered the detention of persons ‘of unsound mind’ and argued that the ‘requirement for medical expertise in making a decision to detain an individual with a mental disorder’ necessitates ‘best interests (as) a guiding principle in making decisions for involuntary admissions under mental health legislation’ (p.27).. The faculty pointed to the ECtHR case of Winterwerp v the Netherlands, which considered the detention of persons ‘of unsound mind’ and argued that the ‘requirement for medical expertise in making a decision to detain an individual with a mental disorder’ necessitates ‘best interests (as) a guiding principle in making decisions for involuntary admissions under mental health legislation’ (p.27).3 Many of those in favour of retaining ‘best interests’ acknowledge that, as it stands, the concept is open to misuse and that further definition is required in relation to how the idea ought to be interpreted with respect to human rights. The Expert Group suggested retaining the exclusion for personality disorder and re-wording Section 8(2) so that ‘the involuntary admission of a person to an approved centre cannot be authorised by reason only of the fact that the person (a) is suffering from a personality disorder, (b) is socially deviant, (c) is addicted to drugs or intoxicants, or (d) has an intellectual disability’ (p. 23)

Section 57: Mental capacity and treatment without consent

Findings

Conflict of interest