For far too long, mental health institutions in Ireland were associated with long-term incarceration and banishment from society. Our mental hospitals, for decades, were the places where we sent those who were ‘different’ or troublesome, or whose presence made us feel uncomfortable.
Many of our best writers and poets and creative artists found themselves consigned to mental hospitals for long periods of their lives, there to join unmarried mothers or the abandoned or those deemed unmanageable by society. All too often, the guiltless could find themselves committed on the whim of a vindictive spouse or sibling or relative, with little chance of a return to normal society.
All that has changed with more enlightened mental-health legislation of recent years, and few would wish to turn the clock back. There are now safeguards in place to ensure that a patient’s rights are taken into consideration before a court will, without good reason, commit a person to involuntary residential care. A person detained under mental health legislation now has access to free legal representation and has the right to be heard by an independent tribunal.
There is now, we like to think, an even balance between the obligation on society to protect a person from the harm to himself (and others) brought on by mental illness, and yet protect the basic human right to freedom of choice for every individual.
And it is this fine balance that seems likely to provoke a bitter debate over the coming months as to the limits of personal rights of choice.
At heart is a current report from an expert group into the workings of mental health legislation. The report, in essence, advocates a substantial shift away from what it terms the ‘paternalistic’ interpretation of the courts in order to comply more fully with European conventions on human rights. They argue that the current paternalistic approach – where others decide what is in the best interests of a mentally ill person – is at odds with a person-centred approach. The report seeks a replacement of the principle of ‘best interests’ of the patient, as determined by others, with the principle of the right to autonomy of the individual.
In short, what is being urged is that healthcare professionals must assume that a patient has the capacity to make a decision, unless proven otherwise, even if it is the view of the carers that the decision is not in the best interests of the patient.
It is a stance which, by and large, is being opposed by members of the psychiatric profession, who argue that a core feature of severe mental illness is the inability of the patient to realise the need for treatment. To then withhold treatment on the grounds that a patient’s consent is a preliminary legal requirement would be to fly in the face of common sense. A lack of necessary insight must mean that qualified professionals must be allowed to make the decisions.
And while personal autonomy may be a noble goal, they argue, a temporary loss of autonomy in order to enable appropriate treatment to be administered would lead to greater autonomy and quality of life in the long term.
Ranged on the other side of the argument are the human rights campaigners who hold that, regardless, people with severe mental distress should not be deprived of their liberty or have their human rights violated. The institutions of church and state are not to be trusted to protect the rights of the individual, they assert, citing a litany of recent shameful revelations.
It is a battle we will hear much more about, before the die is cast.