Amnesty’s stance on mental health

I WISH to respond to Seán Fleming who states that people can be “forced to… undergo electroconvulsive ‘therapy’ ” (ECT), and that “human rights organisations like Amnesty International refuse to condemn this” (Irish Examiner letters, December 5).

Amnesty International has repeatedly pointed out that free and informed consent should form the basis of mental health treatment.

Principle 11 of the 1991 UN Principles for the Protection of Persons with Mental Illness sets out the general principle that “no treatment shall be given to a patient without his or her informed consent”.

This raises the issue of what is meant by “informed consent”. Where the person has the capacity to give or withhold informed consent to a treatment, such consent is required.

All persons must be assumed to have capacity unless the contrary is demonstrated, and the law must be clear as to when it can be decided that a person can legitimately be found to lack the capacity to make informed decisions about a mental health treatment.

In such cases, an authorised personal representative should act on their behalf, ie, someone authorised by the person or legally appointed to represent his or her interests.

For ‘non-protesting’ persons, ie, people who are incapable due to their mental health status of giving or withholding consent to treatment, but who do not expressly refuse treatment, legislation must provide sufficient safeguards.

Where ECT is concerned, it should only be administered after obtaining informed consent — whether from the person or, if they lack capacity, their personal representative — and where the decision has also been confirmed by an independent authority.

MI Principle 11(14) states that “intrusive and irreversible treatments” for mental illness may be carried out “only where the patient has given informed consent and an independent external body has satisfied itself there is genuine informed consent and the treatment best serves the needs of the patient”.

This independent authority must be separate from the individual(s) proposing the treatment, and be composed of people with the necessary skills and knowledge to judge the legal competence of the patient.

Simply stated, this means that ECT should never be ‘forced’ on any persons against their will or, if they are lacking capacity, against their will as expressed by their personal representative. For informed consent to operate as the basis for mental health treatment, capacity legislation linked with a right to appoint a personal representative is required.

The Mental Health Act 2001 is to be reviewed by the Minister for Health early this year and Amnesty will be seeking amendments, including in this regard.

Fiona Crowley

Research and Legal Manager

Amnesty International

(Irish Section)

48 Fleet Street

Dublin 2