Mental health law reforms not sufficient to respect human rights
St Stephen's Hospital in Glanmire, Co Cork. Throughout the 20th century, Ireland had one of the highest rates of institutionalisation and segregation of people in psychiatric hospitals anywhere in the world. File picture: Dan Linehan
The long-awaited Mental Health Bill was meant to mark a new chapter in Ireland’s approach to mental health law, a chance to move beyond the paternalism embedded in the Mental Health Act 2001 and finally deliver legislation grounded in respect for human rights.
Throughout the 20th century, Ireland had one of the highest rates of institutionalisation and segregation of people in psychiatric hospitals anywhere in the world. This legacy of confinement, rather than community living, reflected deep structural inequalities and appalling discrimination.
The bill represents an opportunity to confront that history and to better align Irish law with its obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD) and the European Convention on Human Rights.
It contains a number of important and welcome reforms, most notably the introduction of guiding principles in Part 2, which embed greater respect for autonomy and human rights, the creation of a dedicated section on children, which establishes a clearer, more coherent framework for safeguarding their rights, and the regulation of community mental health services.
Yet despite these pending advances, many of the other progressive, rights-based reforms originally envisaged have been weakened or omitted.
The mental health legislation regulates how the State may deprive people of their liberty, autonomy, and bodily integrity. While only a small number of people are subject to involuntary detention at any given time, the human rights implications are profound.
These powers represent some of the most serious intrusions the State can make in a person’s life. They set the moral and legal standard for how Ireland values the equality and dignity of people with psychosocial disabilities and whether it respects their right to make legally effective decisions about their own lives.
When the Government appointed an Expert Review Group (ERG) to review the 2001 Act, reporting in 2015 it set out a roadmap for reform that would better align Irish law with international human rights obligations.
The 2021 Heads of Bill reflected much of this vision, promising shorter detention periods, stronger safeguards around capacity and consent, and a decisive shift toward supported rather than substituted decision-making. These proposals were welcomed.
However, as the new bill nears completion, it is increasingly clear that some of the key promised safeguards have been diluted, delayed, or quietly undone. The result is a reform that modernises language (in parts) and procedure (in parts) but fails to deliver the transformative, rights-based vision that people with lived experience of mental health services have campaigned for.
The College of Psychiatrists of Ireland is the sole professional body responsible for training doctors to become specialists in psychiatry. The college occupies a uniquely influential position in shaping mental health policy and law.
With that influence and power comes a responsibility to engage constructively with human rights principles and to promote legislative reform aligned with Ireland’s international obligations. While the college’s perspective is important, its interventions have at times appeared to have the effect of diluting key safeguards that are central to a rights-based approach.
A case in point is the call for independent advocacy and an independent complaints mechanism, two of the most basic safeguards for people involuntarily detained in mental health services. Advocacy must be independent from service providers, and complaints systems must be external, accessible, and capable of providing real redress.
Legal representation at Mental Health Tribunals and the HSE’s Your Service, Your Say are not sufficient. Yet, despite clear international guidance, the college has used its influence to argue against these provisions in a letter to senators last month about the bill.
A human rights-led approach would support long-standing campaigns by people with lived experience and by human rights organisations for independent advocacy, and fit-for-purpose complaints mechanisms. Instead of reinforcing medical paternalism, the college could use its considerable authority to work collaboratively with service users and rights advocates to strengthen the bill in this area.
The WHO has observed in its 2023 guidance on mental health laws that seclusion, solitary confinement, and the use of restraints, including chemical restraints, continue to be used globally to enforce compliance with treatment. An earlier draft of the Irish Mental Health Bill in 2021 sought to add chemical restraint to the existing safeguards around seclusion and restraint (regulated by the Mental Health Commission).
While the provisions on other forms of restrictive practices have been retained, those on chemical restraint have been removed. In its recent letter to senators, the College of Psychiatrists asserted that chemical restraint “does not exist”. If that were so, the college should have no objection to its regulation in law.
The unexplained omission of statutory safeguards on chemical restraint, despite repeated warnings from the Council of Europe’s Committee for the Prevention of Torture, leaves the legislation open to criticism that human rights protections are being subordinated to clinical expediency.
The unsung heroes of this long reform process are those with lived experience of mental health services who have, for more than 15 years, contributed their time and expertise (nearly always unpaid) to shaping this legislation.
Through the Amnesty International mental health campaign (over 10 years ago), the ongoing work of the NGO Mental Health Reform, and numerous consultation processes led by the Department of Health, people with lived experience have called for mental health law that reflects human rights standards.
Many have shared personal experiences of coercion, fear, and powerlessness in mental health settings, not to condemn services, but to help build a system that better respects human rights.
However, there is a growing concern that the perspectives of those with lived experience are being overshadowed, as amendments shaped through professional lobbying appear to be taking precedence over the bill’s original human rights focus and intent.
There remains an important opportunity to get this right. The stakes are high as the bill risks perpetuating old patterns of coercion, exclusion, and inequality.
The bill can still be strengthened to provide for timelier reviews of detention, a statutory duty to record and provide supports to enable consent, regulation of chemical restraint by the Mental Health Commission, and a legal right to independent advocacy and a meaningful complaints mechanism, etc.
The College of Psychiatrists, in particular, is well placed to engage constructively with the law reform process to help ensure that Ireland’s mental health legislation reflects international human rights standards and aligns with the approach set out by the World Health Organization.
This is not about assigning blame, but about seizing the opportunity for real reform. Legislators, mental health professionals, NGOs, and people with lived experience can together deliver the rights-based change needed and long promised.
- Dr Charles O’Mahony is associate professor in law at the School of Law, University of Galway
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