Mental health legislation is moving on from paternalism

Last week, a review of the Mental Health Act 2001 by an expert group was published. This will provide a road map.

A modern legislative framework can lead to improved mental health services and hopefully, a significant cultural shift, Mental Health Minister Kathleen Lynch writes

I have always liked the Ralph Waldo Emerson quotation “All life is an experiment. The more experiments you make the better”.

Each of us live this truism out on a daily basis. Sometimes we arrive at the answer we are looking for quite quickly; other days it’s not so easy. We learn and adapt as necessary.

All of this applies equally and perhaps more so to people who have mental illness. Like everyone, such individuals have good days and bad and they adapt using personal learning techniques, counselling, physical exercise, and perhaps medication. The recovery model has been central to how our services interact with those with mental illness since the publication of A Vision For Change in 2006.

Last week, a review of the Mental Health Act 2001 by an expert group, which I appointed, was published. This will provide a road map for how we amend our mental health legislation for the better. Mental health legislation is focused primarily on the processes, safeguards, and protections around involuntary detention and treatment and it must be remembered that legislative change is only one part of the important reform process that is going on. The move to a community-based model of mental health care is happening because of the policy set down in A Vision For Change and the additional €125m ring-fenced for this which this Government has delivered since coming to office in 2011.

The Mental Health Act 2001 has served us well over the years. It introduced very significant changes including the removal of indefinite detention orders while bringing in new involuntary admission procedures, independent reviews of detention, free legal representation, independent psychiatric opinions, and the establishment of the Mental Health Commission to oversee standards of care and protect patients’ interests. The subsequent publication of A Vision for Change and the Convention on the Rights of People with Disabilities requires that we look again at our legislation with a view to bringing it into line with international best practice.

The review, which contains 165 recommendations is progressive in nature. First and foremost, it sets out to promote and protect the rights of persons with severe mental illness. This is in addition to promoting access to the most appropriate and highest achievable standard of care and support.

There is an important recognition in the review that there is often a contested view of mental illness and that both mental health professionals and others such as the court services should take account of this and have respect for a person’s own understanding of their condition and mental health in the context of their own life experience.

Another recommendation which I warmly welcome is the move from paternalism and best interests to a service that is guided by autonomy, self-determination, and respect for the person’s dignity with a presumption that the person is best placed to determine what promotes/constitutes his/her own dignity. In this regard, there are numerous references to a person’s capacity in the review and future legislation will ensure that a person with capacity can make his/her own treatment decisions while others who may need help to understand and make decisions will get that support where necessary. Proposals are included to deal with the “compliant incapacitated”. These are patients who require in-patient treatment but do not have capacity to consent to such treatment. In future, such patients will be classified as “intermediate patients” and will have similar safeguards regarding access to tribunals as are already available to detained patients.

It is my intention to deal separately and within a shorter timeframe with a change in legislation regarding the use of electroconvulsive therapy (ECT). At present ECT can be administered to an involuntary patient even if that patient has capacity and refuses such treatment. I believe such a refusal (where a person has capacity) must be respected and will bring forward early proposals in this regard. ECT may still be administered in future, but in all cases where a person has capacity, he/she must consent to such treatment.

At its heart, there is always a balance to be achieved. On the one hand there must be robust processes and safeguards for any decision to detain and treat a person without consent. I believe the recommendations proposed in this regard will improve these vital components in future legislation. Secondly, legislation must continue to allow for detention and treatment where there are dangers to the health or life of the patient or to others.

The emphasis on promoting and encouraging patients to involve families and carers in the admission process and in the development of care and treatment plans including discharge planning cannot be over-stated in this regard. The introduction of a more modern legislative framework will not just lead to improved services, more appropriate procedures and safeguards but also, I hope, to a significant cultural shift in how mental health services are delivered.

The report of the expert group is available at 

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