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Opinion Proposed changes to the Mental Health Act must prioritise human rights

A group of academics and people with lived experience of treatment under the legislation advocate for a human rights based approach to treatment under proposed laws.

WE ARE ALL potential users of mental health services. The question is how would we like to be treated if we found ourselves in this situation?

Under current Irish mental health legislation, people experiencing severe mental distress are at high risk of being denied the right to make decisions about their treatment, deprived of their liberty, and having their human rights violated.

This is at odds with the United Nations, World Health Oganization and international best practices. The real tragedy is that people are still having their human rights violated and not getting the support they want in the Irish mental health system.

At the moment, members of the Oireachtas are working through proposed changes to the Mental Health Act after the Government approved the draft heads of a Bill of amendments to the legislation.

Human rights approach

The UN Convention on the Rights of Persons with Disabilities requires us to move to a human rights-based approach in line with WHO guidance. This is an obligation, not a choice. The World Psychiatric Association has recently made important steps in this direction and issued a position statement entitled “Implementing alternatives to coercion. A key component to improving mental healthcare”.

Mental health is the only area of healthcare where people can still be treated without their consent outside of emergency situations even though research shows that people are at no greater risk than the general population and have similar levels of decision-making capacity.

While only 16% of people being admitted for mental health treatment in Ireland in 2020 are detained under the legislation, the threat of coercion permeates the whole system and affects everyone who is admitted on a voluntary or involuntary basis due to regrading powers in the legislation.

Coercion includes any intervention or treatment given against a person’s will or without their informed consent and can be actual or implied. Supports can be provided where a person is unable to consent. The fear that non-compliance with mental health treatment may lead to detention in hospital or forced treatment under the legislation is described as ‘a coercive shadow’. Many people are not seeking help when they need it for this reason. Any treatment decision made under the threat of coercion is not free and informed consent.

Coercion has a profound impact on the person and should not be viewed as necessary to treat people. It is incorrect to state that people won’t be able to access treatment or care unless we retain mental health legislation in its current form. It is not necessary to violate human rights to respect them.

Involuntary detention and treatment are not necessary if we have a system of support and alternatives in place to allow people to access treatment in accordance with their wishes in these situations. Our new Assisted Decision-Making (Capacity) Act (due to commence this summer) is moving towards a system of supported decision-making for this very reason. Our new mental health policy, Sharing the Vision, also states that coercion should only be used in emergency circumstances.

Fear of system

There is no evidence that current approaches are working or giving people any choice. Readmission rates of 61% in the mental health system suggest we need to consider funding alternatives. Coercion is extremely stigmatising and traumatising for the person and can lead to a breakdown of trust, leading to further isolation.

Many people with lived experience of being treated in the mental health system and under the legislation (who are the most important experts on this) feel their human rights have been violated and they have not been listened to. This has caused additional trauma from which they have had to recover from, a breakdown in family and therapeutic relationships and deterred people from seeking treatment.

The following experiences have been encapsulated in quotations from research undertaken with people treated under our mental health legislation.

It is an awful feeling to know your liberty and rights can be taken away from you at any time and that you have no say whatsoever in your treatment.
- Service user A
When I became unwell … an ambulance, two police and a swarm of psychiatric nurses and ambulance staff arrived at my house, even though I had not endangered my own life or those around me. My experience with psychiatry was a very negative one. It nearly destroyed me. I am trying hard to bounce back from the trauma of it all … My mental health has been severely damaged by the experience.
- Service user B

Another person feels her only option is to stay well as a result of her experience:

Personally, I continue to feel unsafe should I experience another mental health episode … My only option now … is to stay well.

- Service user C

Why are people still living in fear of being admitted for mental health treatment? Is this the only way we can provide treatment and care to people when they are most vulnerable?

What form of treatment and care or alternatives are we offering outside of medication?
According to psychiatrist Professor Dainius Puras who is a former UN Rapporteur on the Right to Physical and Mental Health, the human rights situation in mental health services is alarming. He recently presented to the Oireachtas Sub-Committee on Mental Health. He states that:

To a large extent the systemic global failure in the field of mental health is related to the prevalent use of non-consensual measures … Although mental health laws in many countries are supposed to protect the rights of persons with psychosocial disabilities, in practice, these laws are systematically deployed to override basic rights of many users of services through the widespread use of non-consensual measures.

Prof Puras goes on to state that:

Some influential professional organisations of psychiatrists … remain opposed to emerging changes and continue to support the status quo. It is important to highlight that the right to health has been misinterpreted as a right to provide mental health services (even without the consent of the person) as more important than other rights, such as the right to refuse treatment, the right to bodily autonomy, and the rights to be free from discrimination, inhuman and degrading treatment.

The readmission rates suggest that current approaches are not working, and we need to move in a different direction urgently. This is an obligation, not a choice. It is critical we all work together to effect much-needed change in this area. This is in all our interests.

We remain hopeful in the words of Professor Puras that “national psychiatric associations will support the emerging movement in the field of mental health towards the elimination of a legacy that discriminates and disempowers persons with psychosocial disabilities and other mental health conditions.”

The Advocates for Human Rights in Mental Health Care is comprised of: Dr Fiona Morrissey, Disability Law Researcher, Lecturer, ATU, Adjunct Lecturer, NUI Galway; Jennifer Hough (Family Member); Dr Charles O’Mahony, School of Law, NUI Galway; Fiona Anderson, BA, LLM, Recovery Expert by Experience; Dr Liz Brosnan, Academic, Survivor Researcher, Recovery Expert by Experience; Rosy Wilson, Retired Lecturer, Recovery Expert by Experience; Dr Harry Gijbels, Retired Lecturer, UCC, Former Mental Health Nurse and Deirdre Lillis, Advocate, SHEP.


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Advocates for Human Rights in Mental Health Care
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