Overhaul of mental health law which ‘deprives people of liberty’ may not happen before election

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A VITAL OVERHAUL of Ireland’s mental health legislation may not happen before the next general election, the head of the national coalition for mental health has warned.

Fiona Coyle, CEO of Mental Health Reform, said the protracted delay in publishing the Mental Health Amendment Bill is “completely unacceptable”, adding that the Government has been drafting the legislation “since 2016″.

The long-awaited legislation would update the Mental Health Act 2001.

“Successive ministers have made countless promises to prioritise the legislation however progress has been inexcusably slow.

“Unless the Mental Health Amendment Bill is signed into law this year, it could lapse following the dissolution of the Dáil,” Coyle said.

The Bill would bring about the largest overhaul of the State’s mental health laws in decades.

Mental Health Reform and other groups working in the sector have long warned that the current legislation is at odds with international human rights standards including the United Nations Convention on the Rights of People with Disabilities (UNCRPD).

The proposed legislation would strengthen regulation around people consenting to the type of treatment they receive.

It is also expected to regulate Child and Adolescent Mental Health Services (CAMHS) as the majority of mental health services in Ireland currently fall outside the scope of regulation set out under the 2021 Act.

The Heads of the Mental Health Bill, outlining what will be in the legislation, were published in July 2021 and pre-legislative scrutiny was completed in May 2022.

However, when the Government last week published its priority legislation for spring 2024 the Bill was on the priority drafting list rather than the priority publication list.

As a result of this, Mental Health Reform has warned that the legislation may not pass before the next general election. The date for the election has not been set, but it will happen at some point this year or next year.

‘Depriving people of their liberty’

Speaking to The Journal, Coyle said there is “widespread agreement” in the sector that the current legislation is “not aligned with international human rights standards” in terms of issues such as involuntary detention.

It’s one of the very few pieces of legislation in Ireland where you can deprive people of their liberty. Under the Mental Health Act you can involuntarily detain someone and de facto deprive them of their liberty.

Under the current legislation there are also issues related to young people’s consent to treatment.

“Currently, if you’re a younger person, aged 16 or 17, you’re able to give or withdraw consent for physical treatment – but you can’t do the same for your mental health treatment,” Coyle said.

Assisted-decision making

Fiona Anderson, a member of the Disability Advisory Committee of Irish Human Rights and Equality Commission, said mental health patients need to have a greater say in their treatment.

Anderson, a long-time activist, has been engaging with mental health services since the 1980s.

She has spoken publicly about her experience of what she describes as involuntary detainment. On one occasion she says she was physically restrained and forcibly injected with medication when she refused an increased dose.

She says she also has reduced kidney function due to lithium treatment she underwent in the 1990s and early 2000s.

Lithium is a mood stabiliser used to treat conditions such as bipolar disorder, mania and depression. However, its use is controversial and excess amounts can cause problems with people’s kidneys and other organs.

Due to her kidney issues, Anderson requested that she be taken off lithium but says she was kept on the medication beyond that point. Eventually she was taken off the treatment but believes prolonged lithium use worsened her kidney functioning.

My kidney function now hovers around 20%. I’m being monitored, I get kidney infections quite regularly. Dialysis is looming, the closer I get to under 20%.

“That frightens me, it’s just very complicated to try and deal with,” Anderson told The Journal.

If a person’s right to consent to treatment was better protected by legislation, she believes doctors would have listened to her sooner, adding: “I wouldn’t be in the position I am now.”

Anderson said people should be empowered to give informed consent in relation to being admitted as a patient at a mental health facility, as well as issues such as the type of treatment they receive and the dosage of any medication.

If they cannot consent for some reason, she said assisted decision making should kick in.

Anderson, who has a master’s in International Comparative Disability Law and Public Policy, said the three-tiered system in the Assisted Decision-Making (Capacity) Act should be incorporated into the new mental health reform law.

Under this particular system, a person can formally appoint a decision-making assistant or a co-decision maker, or the Circuit Court can appoint a representative to make certain decisions on behalf of a person who is unable to do so themselves.

“My proposal is that the three-tiered supported decision-making that’s available in the ADMCA 2015 is inserted into the mental health legislation so that people who are detained can avail of that mechanism in order to make decisions regarding their treatment if their capacity is compromised in any way,” Anderson said.

“At least give them that facility where their wills and preferences are considered and given due recognition, respect and consideration.”

A priority for Government

A spokesperson for the Department of Health said progression of the new Mental Health Bill “remains a priority for Minister [Mary] Butler and the Government”.

“Significant resources have been allocated to the Bill by both the Department of Health and the Office of Parliamentary Counsel (OPC) throughout the drafting process.

“Good progress has been made on the drafting of this substantial Bill since drafting re-commenced in January 2023, with Department officials working with the Attorney General’s Office to resolve a number of complex legal issues in parallel with drafting.”

The spokesperson said that one of the priorities of the Mental Health Bill is to “empower people accessing inpatient mental health services to make decisions about their own care and treatment through greater alignment with the Assisted Decision-Making (Capacity) Acts 2015 and 2022″.

They said the Department has “given in depth consideration to the complex interface” between the Assisted Decision-Making Acts and the current and future Mental Health Act, “in particular how the three-tiered decision-making process might impact on the integrity of the involuntary admission system”.

The spokesperson noted that the three-tiered decision-making process was included in the Heads of Bill and “it is the Department’s intention that these will be reflected in the final Bill”.


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