The Mental Health Bill 2024, which is at committee stage in the legislative process, is not fit for purpose. It should be abandoned or radically revised.
At present, most treatment for mental illness is delivered on a voluntary basis in the community. Ireland’s rate of admission and treatment without consent – referred to “involuntary admission” – is among the lowest in Europe. It is about half the rate of England.
The Mental Health Act 2001 has numerous checks and balances. Involuntary admissions from the community require an “application” to be made by a family member, Garda or someone else. An examination by a doctor is needed, often a general practitioner. Finally, there is another examination by a psychiatrist. Treatment can be given without consent if the person lacks capacity to decide about treatment.
All involuntary patients receive automatic free legal representation, an independent psychiatry opinion, and review by a mental health tribunal within 21 days. Patients can lodge appeals in the Circuit Court or High Court.
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The 2024 Bill proposes significant changes to treatment during the first 21 days. The Bill states that involuntary patients who lack decision-making capacity and do not accept treatment could be treated only if treatment is “immediately necessary for the protection of life of the person or that of another person” or “necessary for protection from an immediate and serious threat to the health of the person, or that of another person”. This risk-based threshold would mean that some people’s mental illness would be deemed sufficiently severe to require involuntary admission, but not sufficiently severe to require treatment. That makes no sense. It is a prescription for preventive detention, a return to the “mental hospitals” of the past which emphasised custody over care. It should not be possible for a person to be deprived of their liberty on the basis of mental illness but not treated for it. That is simply imprisonment.
The 2024 Bill proposes three legal processes for some of these patients: mental health review boards to review involuntary orders (as is currently the case); Circuit Court hearings to review the patient’s decision-making capacity (under the Assisted Decision-Making (Capacity) Act 2015); and High Court hearings for treatment orders. In other words, doctors would decide who is deprived of liberty, but judges would decide who is treated. That makes no sense either.
Such a multilayered legal process would also be unimaginably complex, cumbersome and costly. Treatment would be delayed, resulting in longer involuntary admissions. The Circuit Court process under the 2015 Act typically takes more than six months to complete, but most involuntary admissions last less than a month. Therefore, most Circuit Court applications would never reach fruition, would not benefit patients and would simply waste resources.
So, what can be done?
First, the 2024 Bill has positive aspects. The proposed definition of “treatment” finally acknowledges the intimate connection between physical and mental health. This reflects psychiatry’s broad, bio-psycho-social model of care, rather than the reductive “psychosocial disability” approach, which ignores physical health and focuses on “disability”. Psychiatry focuses on treatment and recovery.
Second, all mention of “risk” should be removed from the legislation. Unfortunately, it is not possible to predict which individuals will die by suicide or will harm other people. As a result, assessment of risk is not a reliable basis for admission or treatment without consent.
Third, criteria for admission without consent should be the same as criteria for treatment without consent. These should occur only if the person has severe mental illness; if they lack decision-making capacity to decide about admission; they lack capacity to decide about treatment; real therapeutic interventions are available and will be provided, and treatment cannot be delivered in a less restrictive way (such as at home).
Fourth, mental health review boards should review involuntary admissions to ensure that all five criteria were met at the time of admission and are still met on the day of the review. Currently, review boards occur within 21 days of admission. That is too long to wait. Review boards should be held as soon as possible, ideally within 48 hours or, at most, a week. Patients should have the right to appeal in the Circuit Court or High Court.
Fifth, the supports of the Assisted Decision-Making (Capacity) Act 2015 should be available to psychiatry patients on an equal basis to the rest of the population. The 2024 Bill would make Circuit Court applications mandatory for every involuntary patient who lacks decision-making capacity, regardless of the person’s will and preferences.
All patients should be made aware that they can apply for the supports of the 2015 Act if they wish, assisted by their legal representative. For the minority of involuntary admissions that last beyond three months (less than 10 per cent), the patient’s legal representative could make an application on the patient’s behalf if they are unable to do so themselves.
Finally, the 2024 Bill lacks ambition. It inflates bureaucratic requirements without providing a single euro more for mental health services. It has a deeply constricted view of human rights. The proposals focus on the important task of governing restrictions of rights, but fail to recognise the transformative potential of a truly rights-based approach. India’s Mental Healthcare Act 2017 states that “every person shall have a right to access mental healthcare and treatment”. Ireland should enshrine a similar right to care in the community, with inpatient treatment if needed.
A true commitment to human rights would ensure that all people with mental illness receive care and support. Regrettably, the 2024 Bill would go some way towards ensuring they don’t.
Brendan Kelly is professor of psychiatry at Trinity College Dublin. His most recent book is The Modern Psychiatrist’s Guide to Contemporary Practice: Discussion, Dissent, and Debate in Mental Health Care
